2000 PLP 1038 (SCMR)

ABDUR REHMAN KHAN, J.

Initially, six accused, including respondent Safdar Ali, were charged in the F.I.R. for the murder of Abdul Rasl;id and for the murderous assault over complainant Muhammad Asghar (P.W.12) and his brother Muhammad Aslam (P.W.10). The charge framed by the learned trial Court reads as under:-- "I, Muhammad Fayaz Ahmad Khawaja, Additional Sessions Judge, Gujrat do hereby charge you as under:-- Firstly, That on 22-3-1987 at 8-00 a.m. in the area of Tanda Road Adda Kharian near Muhammadi Hotel Police Station Jalalpur Jattan, District Gujrat you namely Muhammad Safdar armed with .12 bore gun, Bashir Ahmad armed with 7 MM rifle, Abdul Jabbar armed with .12 bore gun, Muhammad Mushtaq armed with weapon of offence, Muhammad Iqbal alias Bali alongwith your absconder accused Mian Khan who was armed with .12 bore gun in prosecution of the common object formed an unlawful assembly, thus, you committed an offence punishable under section 148/149, P.P.C. which is within the cognizance of this Court. Secondly, that you all alongwith your absconder accused at the same abovementioned time, date and place fired at Abdul Rashid in order to finish his life as a result of which he died at the spot, thus, you all committed an offence, punishable under section 302, P.P.C. which is within the cognizance of this Court. . Thirdly, you all alongwith your absconder accused, at the above said time, date and place fired at Muhammad Asghar complainant and Muhammad Aslam P.W. in order to finish their lives, thus, you all committed an offence punishable under section 307, P.P.C. which is within the cognizance of this Court and I do hereby direct you to be tried in the' abovesaid charges. " 2.The learned trial Judge, by judgment, dated 11-3-1991, convicted Safdar Ali accused-respondent under section 302, P.P.C: and sentenced him to death and a fine of Rs.2,00,000 or in default to undergo two years' R.I. It was directed that out of the amount of fine if realised, half of its should be paid to the L.Rs. of the deceased. The remaining five accused were, however, acquitted of the charges. The learned Division Bench of the High- Court, by the impugned judgment delivered on e appeal of the accused-respondent and acquitted him.

3. Leave to appeal was granted in these terms:-- "

6. The case of the prosecution against respondent No.1 was founded entirely upon the ocular testimony furnished by Muhammad Aslam (P.W.10), Mushtaq Ahmad (P.W.11) and Muhammad Ashgar (P.W.12). They all stated that respondent No.1 was one of the persons who had fired at the deceased and the witnesses. The presence of Muhammad Aslam (P.W.10) and Muhammad Ashgar (P.W.12) at the spot at the relevant time 'cannot be seriously doubted as both were injured during the course of occurrence. The trial Court examined two Court witnesses, namely Muhammad Ashraf (C.W.1) and Muhammad Shafi (C.W.2) who were also stated to have witnessed the occurrence. Neither the prosecution nor the defence regarded them as reliable witnesses. Their statement can therefore, be excluded from consideration.

7. The trial Court did not regard Muhammad Aslam (P.W.10), Mushtaq Ahmad (P. W.11) and Muhammad Asghar (P. W.12) as reliable for despite their statements it acquitted five out of six persons put on trial by the prosecution. The High Court rejected their testimony in respect of respondent No. l as well.

8. In support of this petition it is contended that the presence of the injuries on respondent No. l supported the case of the eye-witnesses and so far as his participation in the occurrence was concerned there could not be any doubt. The reasons given by the High Court for not relying upon this confirmatory piece of evidence are almost non existent.

9. After hearing the learned counsel for the petitioner we are of the opinion that the grounds upon which the acquittal of respondent A No.1 is founded need further consideration. Accordingly leave to appeal is granted, so far as he is concerned. The bailable warrants in the sum of Rs.25,000 with two sureties in the like amount returnable to District Magistrate Gujrat, be issued against him."

4. The learned trial Court did not believe the version given by the eye witnesses against the five acquitted accused, as, according to it; their deposition in this respect was contradictory and was -not corroborated by any other piece of evidence, and thus, while. giving benefit of doubt, acquitted them. In appeal, the learned Judges of the Division Bench held that P.W.11, the driver of the bus, and the two other witnesses Muhammad Ashraf and Muhammad Shafi (although not named as eye-witnesses in the F.I.R. but were summoned as Court witnesses) rather helped the defence as they did not support the prosecution case at the trial. Regarding the complainant (P.W.12) and his brother (P.W.10), the two injured eye-witnesses in the case, it was held that they were, interested as they were uncles of the deceased and were inimical towards the accused, therefore, it was observed:-- "Although, we are conscious of the fact that in every such case, it is not necessary to seek corroboration but 'the circumstances of this case compel us to look for corroboration as is required by the rule of abundant precaution: Unfortunately, there is no corroborative evidence on the record which tends to connect the convict with the commission of crime." It was further held by the High Court that the recording of the statement of P.W.10 after 28 days of the occurrence proved that his statement was not aboveboard. The contradictions in their statements were also dilated upon to show that their version does not inspire confidence. It was observed:-- "We have also noticed that according to the statement of both the eye-witnesses, the convict while standing on the left side of the bus, from its window had fired a shot which hit the deceased on the front of his chest. Such injuries could have only been received if fired from the front screen of the bus rather than from the left side of the bus. Similarly, according to the eye-witnesses, the shot fired by Mian Khan also hit the deceased on his chest. It is noteworthy to mention that Mian Khan had entered from the rear side of the bus, it means that the deceased would be facing him but we cannot believe that after having received the first shot, he could have been in such a position as to be hit again on the front side of the chest. In cross- examination, the eye-witnesses had also admitted that assailants had reloaded their guns. If it was so then the empties should have been found at the spot. "

5. The learned counsel appearing for the appellant submitted that the motive set up stands admitted. According to him, the evidence of the two eye-witnesses (P.W.10 and P.W.12) who received injuries further supported the version of the prosecution that these were caused in the manner stated by the injured witnesses. It was further pointed out that the promptitude in lodging the F. I. R. is indicative of the truthfulness of the prosecution case. It was also argued that respondent Safdar Ali had admitted that he had received injuries during the occurrence, which further supported the prosecution case. It was explained that the delay in recording the statement of P.W.10 was because he was unable to make one on account of his injuries and this, according to him, was even admitted by the learned trial Court. It was further argued that the High Court has wrongly held that the eye-witnesses had not been believed by the trial Court in spite of their injuries when in fact the trial Court judgment shows that they have been believed on this count.

6. On the other hand, the learned counsel for the accused-respondent submitted that in view of the admitted enmity between the parties and the relationship of the witnesses with the deceased, they could rightly be termed as interested witnesses. He, therefore, stressed that corroboration of such interested witnesses was necessary under the law as in absence of that, they cannot be relied for conviction. It was pointed out that neither the driver, nor the conductor, nor any passenger from the bus appeared in support of the prosecution case. He also referred to the following portion of the statement "Safdar accused had fired the shot at Rashid from a distance of 4/5 feet. Safdar accused was then standing on the left side of the bus. The bus had the entry door on this side. The same was lying open then. Safdar accused was standing on the ground in front of this door while firing first shot. The barrel in question was then inside the bus. Rashid had received this fire shot when he was still sitting on the seat. At the exhortation of the accused even we did not take any step to conceal ourselves for safety. Only Asghar P.W. had concealed himself then. He had made himself to sit in the gallery of the bus but his head was visible. I do not know as to whether he had received the fire shot while sitting in the bus or otherwise. " to show that sometime the accused-respondent had been shown that firing from within the bus and other time from the ground in front of the bus. It was next submitted that P.W:10 has not uttered a single word about recording of his statement after 28 days. He then referred to the following lines from the statement of P.W.10:-- "Safdar accused was present with the head injury at the spot when the police came there. It is correct that the road over which the occurrence took place is a busy road and there are the shops, the hospitals and the residential houses situated here." in order to stress that if Safdar Ali had been present on the spot at the time of arrival of the police, then what had prevented the police from arresting him alongwith the weapon of the offence. The learned counsel then referred to the contradiction in the evidence regarding the place from where Safdar Ail had fired. In the F.I.R. it was stated:-- While the complainant in his Court-statement stated that Safdar Ali had fired from the door of the bus. P.W. Muhammad Aslam, on the other hand, stated:-- "Safdar accused then while standing on the ground towards the window of the bus then fired an effective shot hitting the chest of the deceased." . It was pointed out that there was nothing in the statement of Muhammad Aslam to the effect that Safdar Ali had come inside the bus and that he gave blow with rod on his head. He also argued that the medical evidence falsified the ocular account in that although the deceased was fired at from the left side but the injuries were found on his right side.

7. We considered the above submissions of both the learned counsel and studied the record.

8. It is axiomatic principle in dispensation of criminal justice that benefit of doubt is to be given as of right to the accused. It is peculiar aspect of this case that out of six accused named in the F. I. R., some were placed to column 2, some were acquitted by the trial Court and one of them (respondent No. l) although convicted by the trial Court was acquitted by the High Court. It is an appeal against the acquittal, so we are required to see if the reasons given for acquittal are fallacious, arbitrary, unfounded and were not available for rendering the finding of innocence/acquittal. The learned counsel for the appellant admitted that the parties had previous ill-feeling and he could also not deny the relationship of the injured eye-witnesses with the deceased. The intrinsic and probative values of the ocular account stood eroded by its rejection to some extent: by the Investigating Agency and to some extent by the trial 'Court by acquitting the five accused, therefore, it would not be safe to place explicit reliance on this evidence without corroboration from an independent source. The learned Judges in the High Court in the circumstances as explained above were correct in holding that this was the type of the evidence could not be accepted without corroboration in view of its interested nature and the flaws therein as indicted ' above.

9. We are, therefore, of the view that the accused-respondent had rightly been given the benefit of doubt and we have not been shown any valid justification for interference. This appeal is therefore, dismissed. ' N.H.Q./B-9/S Appeal dismissed.