1998 PLP 279 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

Appellant No. 1, Muhammad Ashraf along with his brother Zulfiqar, father Ali Hussain, one Bashir Ahmed and his father Muhammad Sharif, was tried for committing murder of Muhammad Ashraf, Sultan and Ghulam Rasool. Accused Ali Hussain died during pendency of the case and as such the proceedings abated against him. The trial Court acquitted accused, Muhammad Sharif giving him the benefit of doubt. However, Muhammad Ashraf, Zulfiqar and Bashir Ahmed were found guilty of the offence and were convicted under section 302/34 P.P.C. All of them were sentenced to death with fine of Rs.10,000 each and in default to undergo R.I. for 2 years. They were also directed to pay compensation of Rs.10,000 each to the heirs of each deceased. The learned Judges of the Division Bench of the High Court of Lahore, while disposing of the Murder Reference and the appeals of the convicts, Muhammad Ashraf, Zulfiqar and Bashir Ahmed, maintained their conviction under section 302/34 P.P.C. but altered the death sentence of Zulfiqar Ali to imprisonment for life while death sentences awarded to Bashir Ahmed and Muhammad Ashraf were confirmed. The convicts filed petition before this Court, for leave to appeal against the judgment of the High Court but leave was refused in the cases of convicts Bashir and Zulfiqar. Leave, however, was granted in the case of Muhammad Ashraf to consider the following contention:- "As the rifle alleged to have been recovered. at the instance of Muhammad Ashraf, petitioner No. 1, did not match with the empties of rifle recovered from the spot, therefore, to reappraise the .evidence qua Muhammad Ashraf, leave is granted to him. " The learned counsel for the appellant contended that case of prosecution rested mainly on the interested testimony of eye-witnesses Faiz Ahmed (P.W.12) and Ahmed (P.W.13) who were not only closely related to the deceased but the enmity between the appellant and the witnesses was also established on record. It is, accordingly, contended by the learned counsel for the appellant that in such circumstances the conviction should not have been based on the interested testimony of such witnesses without seeking corroboration from some other independent and unimpeachable piece of evidence. The learned State counsel on the other hand supported the conviction and sentences of appellant and contended that the ocular testimony in the case was consistent and confidence inspiring and was fully corroborated by the motive and the medical evidence in the case. The learned State counsel, accordingly, contended that the conviction of the appellant was rightly upheld by the High Court relying on the ocular testimony in the case. According to prosecution's case, the appellant at the time of incident came armed with rifle while the other two convicted accused were armed with guns. The appellant was attributed fire from his rifle on deceased Sultan which hit him in his ear. The appellant was arrested by the police on 11-11-1986 and while in custody he led to the recovery of 7 mm rifle on 16-11-1986. Co -accused Bashir Ahmed and Zulfiqar were arrested on 19-11-1986 and on 23-11-1986 respectively and while in police custody they also led to the recovery of guns. The empties, recovered from the scene of offence, the two guns and the rifle were sent to ballistic expert who reported that the empties matched only with the guns recovered from convict Bashir and Zulfiqar. The rifle recovered from appellant did not match with any of the empties recovered from the spot. The trial Court found the recoveries in the case doubtful but convicted the three accused Bashir, ZuIfiqar and the appellant on the basis of ocular testimony which in the opinion of the trial Court found corroboration from the motive alleged in the case and the medical evidence. The learned Judges of the High Court while upholding the convictions and sentences awarded by the trial Court relied on the recoveries which were found to have been proved satisfactorily and therefore, held that the ocular testimony in the case against Zulfiqar and Bashir found full corroboration from the guns recovered from them which matched with the empties recovered from the scene of offence. However, in the case of the appellant the learned Judges of the High Court though found that the ocular testimony in the case .did not find corroboration from the recovery of rifle from his possession as the ballistic expert had given a negative opinion in respect of the rifle, yet the learned Judges held the appellant guilty of the offence on basis of the ocular testimony in the case. It may be mentioned here that the two eye-witnesses examined in the case were closely related to the deceased. P.W.12 Faiz Ahmed is the brother of deceased Ghulam Rasool while the deceased Sultan was his nephew. Similarly, the other eye-witness Ahmed (P.W.13) is the brother of deceased Sultan in the case. The motive stated by these witnesses was a dispute relating to possession of a portion of agricultural land which was in possession of complainant party, and pendency of proceeding under section 107/151 Cr.P.C. between the complainant and the accused parties. In cross examination Faiz Ahmed (P.W.12) admitted the following suggestion:- "It is correct that Ashraf son of Muhammad Sharif accused was murdered for which, my son Ihsan, P.W. Ahmad and Ansar P.Ws. and one Riaz son of Ghulam Rasool deceased were challaned. Riaz aforesaid is a proclaimed offender in the said case till now." From the above admission of the witness, is quite clear that besides the dispute relating to possession of land and pendency of security proceedings between the complainant and accused parties, they were also locked in blood feuds. In these circumstances, the rule of prudence and the principles of safe administration of justice required a very cautious approach to the ocular testimony in the case. The interested testimony of the two eye-witnesses in view of the admitted enmity between the parties, needed corroboration from some unimpeachable and independent piece of evidence on record to sustain a charge of capital punishment against the appellant. The circumstantial evidence in the case, namely, recovery of rifle from the appellant did not provide any corroboration to the ocular testimony in the absence of a positive report of ballistic expert. However, the learned State counsel contended, and it was also so found by the learned Courts below, that the ocular testimony substantially found corroboration from the motive established in the case and the medical evidence produced by the prosecution. The rule of caution which enjoins on the Court to seek corroboration to the testimony of an interested witness from other independent and unimpeachable piece of evidence in the case, implies' that the corroboration must come as to the identity and complicity of the accused in the offence.' No doubt motive is one of the relevant piece of evidence which furnishes support to the case of prosecution as to the involvement of accused in the offence but as held in the case of State v. Muhammad Sharif (1995 SCMR 635), motive is a double edged weapon. While motive may be a sufficient reason for commission of the offence by the accused, it can equally serve as a reason C for the false involvement of the accused in the crime. Therefore, in our humble view, where the prosecution case rests solely on the testimony of interested and inimical witnesses, it would not be safe, in such a case, especially when the punishment prescribed for the offence is capital punishment, to rely for corroboration of interested testimony of such witnesses, solely on the motive in the case. In the circumstances of the present case, the motive alleged against the appellant could not furnish as an independent and unimpeachable piece of evidence to corroborate the interested testimony of eye-witnesses in the case. The next contention of the learned counsel for the State is that the ocular) testimony was corroborated by the medical evidence in the case. Medical evidence by itself does not establish either the identity or the complicity of the accused in the crime. It is only when the complicity of an accused in the crime is established through other evidence, beyond reasonable doubt, that further corroboration can be sought with the help of the medical evidence. Where involvement of the accused in the case is itself in doubt on account of ocular testimony in the case having been furnished by witnesses which are inimical to the accused, the medical evidence in such circumstances can hardly serve as a piece of corroboration to the interested ocular testimony in the case. The recovery of the crime weapon from the appellant in the absence of a positive report of the ballistic expert rendered the prosecution case against the appellant doubtful. In such circumstances, the medical evidence could not furnish corroboration to the prosecution story against the appellant. As we have already reached the conclusion that the witnesses examined by the prosecution in support of the case were not only closely related to the deceased but were also inimical towards the appellant, it was not safe to base the conviction of appellant for a charge involving capital punishment solely on the basis of such interested ocular testimony. We, accordingly, hold that the participation of appellant No. l in the offence could not be established by the prosecution in the circumstances of the case, beyond reasonable doubt and therefore, extending him the benefit of doubt allow his appeal and set aside his conviction and sentence under section 302`1 P.P.C. He is directed to be set at liberty forthwith unless required by the authorities in some other case. N.H.Q./M-41/S Appeal allowed