1996 P Cr (PLP)

3. During trial, the prosecution examined ten witnesses including the doctor and the Investigating Officer. Haider Beg complainant appeared as P.W.6. He made statement consistent with the FIR. (Exh.P.E./1). Aziz Beg appeared as P.W.7. He corroborated the statement of P.W.6 on all material particulars. P.W.6 is a maternal‑uncle of the deceased whereas P.W.7 is a nephew of P.W.6 and a cousin of the deceased. The remaining witnesses who allegedly saw the occurrence i.e. Mst. Nazar Begum, Liaqat Beg and Khaliq Beg were, however, given up by the prosecution as unnecessary.

4. The accused when examined under section 342, Cr.P.C. denied the prosecution story and attributed false implication to enmity. He produced Dr. Syed Tallat Iqbal (D.W.2) qua his state of health who opined that he had some heart problem and he advised that he should be referred to Cardiology Department of the Mayo Hospital, Lahore. Dr. Haider Asadullah Malik, Medical Specialist appeared to state that he examined Asghar Beg (appellant) and found that he was complaining of chest pain. He also advised the appellant for examination by a Cardiologist. D.W.1 is Ghulam Murtaza, a Record Keeper, A.B.S. Hospital, Gujrat. He produced record pertaining to medical examination of the appellant.

5. In support of this appeal, learned counsel for the appellant has raised following pleas:‑‑ (i) That the F.I.R. was recorded after preliminary investigation as P.W.7 admitted that it was lodged after consultation and the delay of one hour in lodging it when the police station was at a short distance confirms his assertion; (ii) That the motive is old and too weak to have prompted the appellant to murder the deceased; (iii) That both the eye‑witnesses are chance witnesses and their presence at the spot is not free from doubt; (iv) That both the eye‑witnesses are related and their testimony without some independent corroboration is not safe for conviction on a capital charge; (v) That the medical evidence belies the ocular account. According to the doctor, the shot must have been fired from a distance beyond five feet whereas according to P.W.6 the fire was made from a distance of one feet and according to P.W.7 from a distance of Five feet.; (vi) That no recovery was affected from the appellant; and (vii) That in any case as there is no immediate cause for the alleged attack, it is not a case of death sentence.

6. Learned State counsel assisted by the learned counsel for the complainant, while defending the conviction of the appellant, have submitted that it was a broad daylight occurrence and, therefore, there was no question of mistaken identity; that the F.I.R. was lodged promptly; that specific roles were assigned; that the motive stands admitted by the defence and that there was no mitigating circumstance to warrant lesser sentence. '

7. We have heard learned counsel for the parties and have also gone through the record.

8. The statement of Haider Beg (P.W.6) which formed basis of the F.I.R. (Exh.P.E./1) was recorded by P.W.9 Khadim Hussain at 8‑15 a.m. The occurrence took place at 7‑00 a.m. After the murder of a close relation, the complainant was not expected to immediately rush to the police station. He must have taken some time to recover from the initial shock and the delay of one hour in lodging the F.I.R. is not such, a delay to warrant an inference that the complainant made consultation with others to cook up a totally false story. Moreso when the occurrence was broad daylight occurrence and the identity of the assailants could not have been mistaken. The ocular account qua the timing of the occurrence and the role attributed to the appellant is consistent and despite a lengthy cross‑examination the testimony of the eye‑witnesses could not be shaken. However, that part of the prosecution story which was not supported by any corroborative circumstances had to be disbelieved, the grain had to be sifted from the chaff and the learned trial Court rightly gave benefit of doubt to the four co‑accused who stand acquitted as they had not been assigned any specific role. In criminal law it cannot be laid down as an inflexible principle that the evidence of a related and interested witness must be corroborated by some independent evidence. If statement of a witness inspires confidence and no I independent witness was available in the facts and circumstances of a particular A case then the Court may rely on the testimony of an interested witness provided it is otherwise not free from doubt. In Roshan and 4 others v. The State PLD 1976 SC 557 it was observed as under:‑‑‑ "There is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of the interested witness Secondly, if the presence of a witness if proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot‑free regardless of the quantum and quality of the oral evidence provided the interested witness. It, therefore depends on the facts of each case and instances are not wanting where the Supreme Court has upheld the conviction of the accused based entirely on the testimony of the `interested' witness". Even in an earlier judgment, the Honourable Supreme Court dealt at some length as to the rational and wisdom of seeking corroboration in certain circumstances. In Nazir and others v. The State PLD 1962 SC 259, it also commented upon the kind of corroboration which is required. The Honourable Court observed as under:‑‑ "There may bean interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes." As to the quality and nature of corroboration the august Supreme Court in the same judgment observed:‑‑ "For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth." The dictum laid down above was reiterated by the Honourable Supreme Court in yet another judgment i.e. Sharif and another v. The State 1973 SCMR 83 and it was observed as follows:‑‑ "Eye‑witnesses interested and partisan‑‑‑Necessary to look for corroboration‑‑‑Such corroboration need not be such as would, by itself, justify conviction ‑‑‑Confirmatory circumstances to be looked at for supporting ocular evidence not implicitly reliable ‑‑‑ Corroboration may be afforded by anything in circumstances of case which tends to satisfy mind of Court of witness having spoken truth."

9. Keeping in mind the afore‑referred principles laid down by the august Supreme Court for appreciation of the evidence of related and interested witnesses we find that the occurrence took place in daylight. The place of occurrence is near a graveyard and it is of expect that early in the morning there would be many people is going that way. The eye‑witnesses are natural witnesses as reasonable explanation has been tendered by them for their being present at the spot as all of them were going for harvesting in the month of May. The appellant had a motive to kill Beg deceased. The medical evidence corroborated the ocular account. With regard to the time between the occurrence and death. The afore‑referred circumstances would have a corroborative value to lend credence to the ocular account furnished by the eye‑witnesses who are related. So far as the argument of the so‑called discrepancy between the medical evidence and the ocular account qua the firing range is concerned, we notice that the occurrence took place on 16‑5‑1991 and the statement of P.W.6 was recorded on 25‑4‑1993 i.e. after a period of almost two years. If such a period had elapsed, a witness is not expected to remember the exact firing range and if he in cross‑examination stated that the appellant fired from a distance of one foot there could be an honest lapse. Similarly, the distance given by P.W.7 in cross‑examination as five feet may not be the exact distance. To say that since there was no blackening around the injury received by the deceased, therefore, the eye‑witnesses are telling a lie would be an over simplification.

10. Keeping in view the time gap between the day of occurrence and the day of eye‑witnesses were examined in Court and the fact that the firing range p cannot be measured with exactitude, the so‑called discrepancy between the medical evidence and the ocular account qua the range of firing would not be fatal for the prosecution case.

11. Coming to the question of sentence, the motive is admittedly rather old and no immediate motive has been brought on record. The appellant is attributed a single shot and he did not repeat the firing. These are to our mind valid extenuating circumstances to warrant lesser sentence. We, therefore, convert the sentence of death awarded to Asghar Beg appellant into life imprisonment. As the offence is being reduced from one of Qisas to Tazir, provisions of section 544‑A, Cr.P.C. will be operative. We, therefore, award a sum of Rs.50,000 as compensation which if recovered will be paid to the legal heirs of Adalat Beg deceased in default whereof the appellant shall undergo R.I. for six months. The appellant shall also be given benefit of section 382‑B, Cr.P.C.

12. In view of what has been discussed above, there is no merit in Criminal Revision No.172 of 1994 which is hereby dismissed.

13. Murder Reference No.234 of 1993 and Criminal Appeal No.630 of 1993 are disposed of in the above‑noted terms. N.H.Q./A‑925/L Sentence reduced.