1998 PLP 25 (SCMR)

SAIDUZZAMAN SIDDIQUI. J.

Sikandar Zulqarnain and Asghar Hayat, respondents 1 and 2 herein respectively, were tried before the Sessions Judge, Sargodha, alongwith seven others, under section 302/149 and 148, P.P.C., for committing murder of one Gul Zaman and forming unlawful assembly while armed with deadly weapons and committing rioting. One of the accused in the case, Mian Sultan, was declared absconder during the trial by the learned Sessions Judge while the remaining eight accused in the case were proceeded against and convicted and sentenced by the trial Court to different sentences. It is not necessary to refer here the details of the convictions and sentences awarded to all the eight accused in the case by the trial Court as all of them were acquitted by the High Court on appeal and leave has been granted by this Court only in respect of respondents l and 2 as follows :-- "The case against Hafiz Khan Muhammad, Muhammad Sharif, Zafar Ali. Mian Safdar, Mian Sardar Bakhsh and Mian Sultan respondents Nos.3--9 has not been proved and have rightly been acquitted but the case against Asghar Hayat and Sikandar Zulqarnain respondents Nos. l and 2 is on a different of footings. They remained in abscondance from 5-7-1978 to 15-8-1978 and their plea was that they were in Turkey at the time of occurrence and have not absconded at all. In our view the defence plea of alibi, so far its truth and falsehood is concerned, in the case of Sikandar Zulqarnain and Asghar Hayat respondents Nos.1. and 2, needs consideration of this Court. Leave is granted against them only and dismissed as against others. Non-bailable warrants are to be issued against Sikandar Zulqarnain and Asghar Hayat respondents Nos.1 and 2."

2. Respondents 1 and 1 were convicted by the trial Court under section 302 P.P.C, and awarded death penalty with fine of Rs.15,000 each and in default of payment of fine they were ordered to suffer R.I. for 3 years. They were also convicted under section 148, P.P.C. and were sentenced to 2 years R.I. each. Respondent No.1 was additionally found guilty by the trial Court under section 120-B, P.P.C. and was sentenced to life imprisonment with fine of Rs.10,

000. Two-third of the amount of fine on realisation was ordered to be paid to the widow and daughters of the deceased.

3. The trial Court while convicting respondents 1 and 2 as aforesaid, disbelieved the plea of alibi raised by them. The learned Judges of the High Court while acquitting respondents l and 2 in the case, though did not examine the plea of alibi raised by them before the trial Court but reached the conclusion that on merits the prosecution failed to establish the case against them beyond reasonable doubt.

4. From the leave granting order reproduced above, it appears that leave has been granted in the case only for examination of the plea of alibi. raised by the respondents before the trial Court. in order to determine whether the period of their alleged abscondence from 5-7-1978 to 15-8-1978 was properly explained. However, at the hearing of appeal the learned counsel for the appellant prayed that he may be permitted to argue the appeal on merits as the High Court while acquitting the respondents only examined the merits of the case and did not advert to their plea of alibi. Since the object of the leave granting order was to examine the propriety of the acquittal order recorded by the High Court, we allowed the request of learned counsel in the interest of justice.

5. The incident in which deceased Gul Zaman lost his life occurred in the night between 4/5th July, 1978 at 11-30 p.m. According to prosecution case, the two respondents along with 3 others came to the scene of offence in a car armed with deadly weapons. They all got down from the car and were identified by the complainant and other eve-witnesses in the case, in electric bulb light. Respondent No.1 was attributed one gunshot injury to the deceased which landed on his right wrist. The second gunshot was allegedly fired by respondent No.2, which hit the deceased on the left side of the chest a little below the shoulder. The other 3 accused accompanying respondents 1 and 2 fired from their respective weapons in the air to scare away the eye-witnesses. The incident was stated to be the outcome of business rivalry between the complainant and accused parties and prior to this incident they were also locked in several criminal cases.

6. The learned Judges of the High Court while acquitting all the accused in the case refused to believe the part of the prosecution story wherein criminal conspiracy by Mian Khuda Bakhsh, Mian Sardar Bakhsh, Mian Safdar and Sikandar Zulqarnain (respondent No. l) to liquidate deceased Gul Zaman was' alleged. This Court while granting leave to appeal against the judgment of High Court acquitting respondents 1 and 2 in the case, declined to grant leave against the acquittal of Mian Khuda Bakhsh, Mian Sardar Bakhsh and Mian Safdar. The effect of acquittal of the other 3 accused in the case charged with the offence of criminal conspiracy alongwith respondent No.1 by the High Court and refusal to grant leave to appeal against their acquittal by this Court is, that the charge of criminal conspiracy now cannot survive against the lone accused (respondent No. l) also, in view of the definition of criminal conspiracy given in section 120-A P.P.C. which necessarily requires presence of more than one person to complete the offence of criminal conspiracy. Similarly, the charge under section 148, P.P.C. also cannot be pressed against respondents 1 and 2 in view of the acquittal of Hafiz Khan Muhammad, Muhammad Sharif and Zafar Ali, who were co-accused with respondents 1 and 2 under this charge, by the High Court and refusal of this Court to grant leave no appeal against their acquittal, as the charge under section 148, P.P.C. cannot be sustained if the number of persons accused under this section is found to be less than five, in view of the definition of 'rioting' and 'unlawful assembly' given in sections 146 and 141, P.P.C. respectively. Therefore, the only charge which remains to be considered against respondents 1 and 2 in the case is under section 302/34, P.P.C.

7. Mr. K. M. A. Samdani, the learned counsel for the appellant/complainant took us through the evidence of eye witnesses in the case and contended that their evidence was consistent throughout and they could not be shaken in the cross-examination. the learned counsel, accordingly, argued that their evidence inspired confidence and they were rightly believed by the trial Court for convicting the respondents in the case. The learned counsel argued that the High Court could not brush aside their evidence on the sole ground that they were interested witnesses, closely related to the deceased. The learned counsel further contended that there is no rule of law which prevented the Court from accepting the evidence of an interested witness, if it inspired confidence, and basing the conviction of an accused on such evidence. The learned counsel for the appellant accordingly, argued that the High Court, in these circumstances, was not justified in interfering with the conviction of respondents l and 2 by the trial Court and acquitting them in the case.

8. The learned counsel for the respondents on the other hand, jointly contended that the evidence of the two eye-witnesses was rightly disbelieved by the High Court, as firstly, they were interested witnesses and there was no independent circumstance or other piece of evidence in the case which corroborated their testimony, and secondly, they have been found to have implicated six innocent persons in the case who were acquitted by the High Court and their acquittal has been upheld by this Court by refusing to grant leave to appeal against their acquittal. The learned counsel further contended that the rule of safe administration of justice in criminal cases required the. Courts to look for corroboration of the evidence of an interested witness in a criminal case involving capital punishment, from some other independent piece' of evidence or circumstance in the case, before accepting such evidence for the purpose of convicting the accused. The learned counsel for the respondents, accordingly, jointly argued that in the case before us the testimony of two interested eye-witnesses neither found corroboration from any other independent piece of evidence or circumstances in the case nor their evidence was worthy of any credence in view of their attempt to falsely implicate innocent persons in the case. The learned counsel for the respondents also took us through the evidence on record led by respondents Nos. l and 2 in support of their plea of alibi, and contended that the documentary evidence in this regard conclusively established that the two respondents were in Turkey on the date of incident and they returned to Pakistan much after that. The learned State Counsel supported the appeal. The main thrust of the argument of Mr. K.M.A. Samdani, before us is, that the two eye-witnesses in the case, Haji Rab Nawaz (P.W.13) and Mahmood (P.W.14) remained consistent in their statement throughout and in spite of searching and lengthy cross-examination their testimony could not be shaken at all. Therefore, such evidence, though coming from an interested witness, was sufficient to sustain the conviction of respondents 1 and 2, specially when it was relied upon by the trial Court as confidence inspiring.

9. There can be no cavil with the proposition that due weight is to be given to the appreciation of evidence of witness by the trial Court which has the opportunity of watching the demeanour of the witness in the witness-box Therefore, where the trial Court places reliance on the evidence of a witness on the basis of its personal observation regarding the demeanour of witness, such observations cannot be lightly ignored by the Appellate Court. However, where the evidence of a witness is evaluated by the trial Court on the basis of the other evidence and circumstances in the case, such evaluation is open to be tested before the Appellate Court on the touchstone of principles and guidelines laid down by the superior Courts for appreciation of evidence in such cases. One salutary principle laid down by this Court in tp behalf and which is now firmly established is, that in a case involving capital punishment, the Courts will not base conviction of an accused solely on the testimony of interested witness C unless such evidence finds corroboration by some other -independent and unimpeachable niece of evidence or circumstance in the case. This rule of prudence though not statutory in nature, has been followed by Courts so consistently through years that it has come to be recognised almost as a rule of law. The departure from this rule is to be found rarely and in very exceptional circumstances of a case. Therefore, to say that the evidence of an interested witness is to be accepted solely on the ground that it remained unshaken during cross-examination is not a correct proposition. As held by this Court in the case of Din Muhammad v. Crown (1969 SCMR 777), 'to test the testimony of a witness, Courts should not only consider whether there is consistency in the narrative but should also consider whether the version is probable or not.' These observations were quoted with approval in the case of Iqbal alias Bhala v. State (1994 SCMR 1) as follows:-- "In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCMR 777) it was observed that 'to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not'."

10. In the case before us, the parties were admittedly at loggerheads with each other on account of rivalry of transport business. There were also some criminal cases between them on account of this rivalry before the incident. The complainant party made wholesale allegations of conspiracy, rioting in addition to murder and involved as many as 9 persons of the same family. The allegations of criminal conspiracy and rioting against six accused in the case have been disbelieved by the High Court and this Court refused to interfere with the findings of High Court in this regard. Even, in respect of two accused (respondents 1 and 2), this Court granted limited leave to examine only the plea of alibi raised by these respondents before the trial Court. In these circumstances, the present case is not one of those exceptional cases where the Court could be persuaded to rely on the uncorroborated testimony of two alleged eye-witnesses to sustain the conviction of respondents 1 and 2 for .a capital charge. The principles for interference by this Court with an acquittal ' judgment recorded by the High Court were stated in the case of Ghulam Sikandar v. Mamraz Khan (PLD 1985 SC 11), 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 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. (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 reasons. (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 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." The reasoning given by the High Court for not according the testimony of the two eye-witnesses in the case without corroboration is based on well -established principle of safe administration of justice in criminal cases and does not suffer from any infirmity. The learned counsel has also not been able to point out any misreading or non-reading of evidence by the High Court so as to call for our interference.

11. In view of our above conclusion, it is not necessary to examine the plea of alibi raised by the respondents before the trial Court in the case as it is of no consequence now moreso as the learned counsel for the appellant also did not address us on the point noted in the leave granting order. The appeal is, accordingly, dismissed. The bail bonds furnished by the respondents 1 and 2 are discharged. N.H.Q./R-11/S Appeal dismissed.