1999 PLP 114 (SCMR)

SH. IJAZ NISAR, J.

Leave to appeal is sought against the judgment, dated 4-12-1995, passed by the Lahore High Court, Multan Bench, whereby the learned Division Bench maintained the conviction and sentence of the petitioner and dismissed the appeal filed by him.

2. The facts, in brief, are that on 20-12-1986 at about 8.00 a.m. Muhammad Sarwar P.W. 1, Muhammad Yousuf P.W.2 and Zafar lqbal deceased were on their way from the field to their village. When they reached near the land of one Bashir Virk, Bashir Ahmed petitioner, his father Asif Ali, Muhammad Nasrullah and Ahmad Ali emerged from the 'Khal'. Bashir Ahmad petitioner was armed with a 7MM rifle, while Asif Ali and Nasrullah (since acquitted) were armed with .12 bore guns. Bashir Ahmad fired at Zafar lqbal deceased hitting him on his back who fell down. The other accused also resorted to firing hitting a tree. The complainant and the P.Ws., raised alarm and on their hue and cry many people from the 'Abadi' arrived there. The accused persons made good their, escape. Zafar lqbal deceased succumbed to the injuries on the same day. After completing the investigation, the police submitted the challan against the accused persons.

3. Vide judgment, dated 11 -4-1990, the learned Additional Sessions Judge acquitted Ahmad Ali, but convicted Asif Ali, father of Bashir Ahmad petitioner, and Nasrullah, under section 302/34, P.P.C. and sentenced them to suffer imprisonment for life plus fine. They were also convicted under section 307/34, P.P.C. and sentenced to 5 years' R.I. plus fine. Bashir Ahmad petitioner, who was also tried alongwith his father and other companions, absented himself and was declared a proclaimed offender. He was arrested about a year thereafter and was tried separately. Before his trial the appeal filed by his father Asif Ali and Nasrullah alias Nusrat was disposed of by the High Court and both of them were acquitted vide judgment dated 3-4-1991.

4. By judgment dated 7-6-1992 the learned Additional Sessions Judge, Sahiwal, convicted Bashir Ahmad petitioner under section 302, P.P.C. for the murder Zafar lqbal deceased and sentenced him to death. However, he was acquitted of the charge under section 307/34, P.P.C. for making murderous assault on the prosecution witnesses. Challenging his conviction and sentence he preferred an appeal in the High Court, which was dismissed on 4-12-1995. Hence, this petition.

5. Raja Muhammad Anawar, learned counsel for the petitioner, contends that the conviction of the petitioner is based on the evidence of Muhammad Sarwar P.W.1 and Muhammad Yousuf P.W.2 examined by the prosecution as eye-witnesses, as also on his abscondence coupled with the matching of his rifle with the crime empties recovered from the spot and the motive. According to him, both the aforementioned eye-witnesses had been disbelieved by the. High Court while disposing of the appeal filed by the petitioner's father Asif Ali and Nasrullah resulting in their acquittal and as such they should not have been relied upon against the petitioner without any independent corroboration of their testimony. He adds that the motive also could not provide the required corroboration for the petitioner's father, who had also been attributed the same motive had been acquitted by the High Court. Para. 19 of the judgment of the High Court as reproduced in the judgment of the trial Court about the credentials of Muhammad Sarwar and Muhammad Yousaf P.Ws., is as under:-- It is obvious that Muhammad Sarwar and Muhammad Yousaf P.Ws. were on account of the 'long standing enmity between the parties', interested witnesses in the accepted senses of that expression. It is well settled that the testimony of such witnesses cannot be acted upon unless it is corroborated in material respects. This was the moreso because in this case all that the appellants were accused of was an in effecting firing. As has been seen above, five empty cartridges of .12 bore gun were recovered from the spot of occurrence and a gun P.-7 was also recovered from Nasrullah appellant. Yet the gun was not sent for comparison with the empties, the plain inference being that the gun allegedly recovered from the appellant, Nasrullah had not been used at all during the course of the incident. In these circumstances, I do not think that it was safe to convict the appellants on the uncorroborated evidence of Muhammad Sarwar and Muhammad Yousuf P.Ws. " Learned counsel maintains that the matching of the crime empties with the rifle P.5 allegedly recovered at the instance of the petitioner was a tainted piece of evidence, in that the empties had been recovered from the spot on 20-12-1986 and kept in 'Malkhana' till 20-1-1987, when the rifle was allegedly recovered at the behest of the petitioner then both were sent together to the Laboratory. According to him, there is no explanation for retaining the crime empties in the Malkhana' for about a month and sending them to the Laboratory after the alleged recovery of rifle at the instance of the petitioner. It raises a presumption that the crime empties were prepared from the rifle P.5 after its recovery. As regards abscondence, he has relied on Sahfqat Ali v. Fateh Muhammad and another (1987 SCMR 491) where it was observed that if ocular testimony is intrinsically unreliable and not worthy of any credit, no kind of corroborative evidence could possibly have any value. Abscondence of the accused in the said case was not considered as corroboratory piece of evidence and the order of acquittal was not interfered with. Learned counsel further contends that it is a settled proposition of law that a circumstance itself requiring corroboration cannot corroborate any such other circumstance.

6. Leave is granted to consider as to whether the conviction of the petitioner was justified in the circumstances narrated above? N.H.Q./B-19/S Leave granted