1991 PLP 1228 (MLD)

Muhammad Aslam and Bahadar Khan were tried under section 307/34 of the P.P.C. on the charge of murderous assault on Sardar Khan P.W.1. On the conclusion of the trial, they were convicted and sentenced to three years' R.I. and a fine of Rs.500 each, in default six months' R.I. each. They Pled an appeal against their conviction and sentence. The learned Sessions Judge, Mianwali, was of the view that the eye-witnesses were inimical and their evidence required independent corroboration. Since there was no independent corroboration qua Muhammad Aslam, so he was acquitted. The learned Appellate Court found corroboration against Bahadar Khan, petitioner, in the shape of suggestion given to the Investigating Officer to the effect that only Bahadar Khan had fired and the other co-accused, namely, Muhammad Aslam had not fired. Relying on the suggestion given to the Investigating Officer in cross-examination that the witnesses produced by the petitioner in his defence before the police had stated that Bahadar Khan alone had fired a shot on Sardar Khan P.W., the learned Sessions Judge has upheld the conviction and sentence of the petitioner, hence this petition.

2. The learned counsel for the petitioner submits that the corroborative piece of evidence, which has been made basis for the rejection of the appeal of the petitioner, was inadmissible in evidence inasmuch as the statement of a person produced in defence before the police is not admissible under section 172 of the Cr.P.C. No one has appeared on behalf of the State to oppose the petition.

3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. I find that the ocular evidence was really inimical, so the rule of prudence did require independent corroboration of their statements qua each accused. The circumstance of suggestion relied upon by the learned Appellate Court as a corroborative piece of evidence was inadmissible in evidence and, as such, could not have been considered or treated as a corroborative piece of evidence. Furthermore, suggestions after all are suggestions and do not take the place of substantive piece of evidence unless the same are proved through direct/indirect evidence. If the circumstance of suggestion relied upon by the learned Appellate Court as a corroborative piece of evidence is excluded from consideration then the case of the petitioner remains at par to that of his co-accused, who has been acquitted by the learned Appellate Court.

4. Pursuant to the above discussion, the revision is accepted. The conviction and sentence of the petitioner, are set aside by giving him benefit of doubt. He is acquitted of the charge. He is on bail. He stands discharged of his bail bond. S.A./B-243/L Revision accepted.