P L D 1960 Supreme Court (Pak (PLP)

KAIKAUS, J.‑This judgment will dispose of two appeals by special leave, one by Niaz son of Chiragh, and another by Muhammad Hussain son of Nawab Din, which arise out of the same judgment of the High Court of West Pakistan. The two appellants were tried along with Muhammad Ali, brother of Niaz appellant, and Muhammad Mushtaq and Muhammad Aslam, brothers of Muhammad Hussain appellant, for the murder of Muhammad Sharif and Muhammad Hanif,‑by the learned Sessions Judge, Multan. Muhammad Ali, Muhammad Mushtaq and Muhammad Aslam were acquitted while the two appellants were convicted and sentenced to death. The sentences were confirmed by the High Court. The case arises out of an attack on the two deceased on the night between the 1 st and 2nd of July 1958, in the fields of Chak No. 160/11011, district Multan, the village of the parties. Rela tions between the families of the accused and the deceased were admittedly strained at the time of the occurrence. Muhammad Ibrahim (P. W. 9), brother of the two deceased, had been married to Mst. Rashidan, sister of Muhammad Husain appellant, while Mushtaq accused had been married to a sister of the deceased. About six months before the present occurrence both Muhammad Ibrahim (P. W. 9) and Mushtaq had divorced their wives. Also, Bashiran, the daughter of the father's sister of Muhammad Aslam accused, had been married to Muhammad Aslam and after she was divorced by him she had been married, in spite of opposition by the family of Muhammad Aslam, to Muhammad Ibrahim (P. W. 9). As already stated, Muhammad Hussain, Muhammad Mushtaq and Muhammad Aslam are real brothers, while Niaz and Muhammad Ali are real brothers and, inter se, the two sets are cousins. According to the prosecution case, on the night between the 1st and 2nd of July 1958, Muhammad Sharif and Muhammad Hanif deceased, who were brothers, had gone, along with Muhammad Ibrahim (P. W. 9) and Ghulhm Muhammad (P. W. 8) who too are brothers of the deceased, to their fields, in order to irrigate them. They took their turn of canal water from Kalu (P. W. 1) who is their uncle, at about midnight. An hour later it was discovered that the flow of water had considerably diminished. At this Kalu and Ghulam Muhammad asked Muhammad Sharif and Muhammad Hanif deceased as well as Muhammad Ibrahim (P. W. 9) to go along the khel in order to discover the cause. Some time later Kalu and Ghulam Muhammad also followed them. When they reached square No. 3. they found Muhammad Ibrahim (P. W. 9) weeping bitterly saying that his brothers were being murdered. At a distance of 10 or 12 karams they found the two appellants and the three acquitted accused giving hatchet blows to Muhammad Sharif and Muhammad Hanif. They raised a hue and cry at which the culprits ran away. Going up to Muhammad Sharif and Muhammad Hanif, Kalu and Ghulam Muhammad found that they had already expired. Some persons collected on the spot on hearing the cries of Ibrahim, Ghulam Muhammad and Kalu. Kalu and Ghulam Muhammad then went to Khairat Mubammad, Lambardar of, the village. He accompanied them to the Police Station where a report was lodged at 8‑30‑a.m., the distance between the place of occurrence and the Police Station being 10 miles. Post‑mortem examination of the deceased revealed that Muhammad Sharif had 10 incised wounds on his body while Muhammad Hanif had 7 such wounds. Death was in both cases the result of haemorrhage and shock. The prosecution case was supported in Court by the statements of Kalu, Ghulam Muhammad and Ibrahim (P. W. 9), who claimed to be , eye‑witnesses of the occurrence. Evidence was also led as to the recovery of two hatchet blades at the instance of Muhammad Husain appellant, but the blades were not found by the Chemical Examiner to be stained with human blood, and therefore they were never sent to the Serologist. The learned Sessions Judge believed all the three eye‑witnesses. He acquitted, however, Muhammad Ali, Mushtaq and Muhammad Aslam, giving them the benefit of doubt, owing to a statement'made by Khairat Muhammad Lambardar that Kalu and Ghulam Muhammad when they approached him had in the first instance, named only the present two appellants as assailants and it was only while they were on their way from the village to the Police Station that they added the names of the three acquitted accused. The learned Judges of the High Court felt that on account of the partisan nature of the ocular evidence it was necessary to "consider whether the words of these three witnesses could be safely accepted against the accused appellants in the case." The learned Judges then referred to the fact that the names of the two appellants had been mentioned to Khairait Muhammad Lambardar by Ghulam Muhammad and Kalu almost immediately after the occurrence when they had had no time for deliberation or concoction and regarded it very unlikely that the two appellants should have been named merely because of the strained relations between the two families. Relying on this circumstance the learned Judges upheld the convictions of the appellants. They agreed with the learned Sessions Judge in the acquittal of three out of the accused, for they were of the opinion that Ghulam and Kalu had made an improvement in the original prosecution story by adding their names. The learned Judges rejected the evidence of Muhammad Ibrahim (P. W. 9) relying upon the statement of Khairait Muhammad that Kalu and Ghulam Muhammad had named before him only the two deceased as the persons who had been sent to find out the cause of diminution of water and had not mentioned Muhammad Ibrahim (P. W. 9). Learned counsel who appears for the appellants does not accept that Ghulam Muhammad and Kalu had in fact seen the occurrence but he contends that, in any case, Kalu and Ghulam Muhammad being interested witnesses some independent corro boration of their statements was needed before the appellants could be convicted on the strength of their evidence, that as a matter of fact the learned Judges of the High Court had accepted this principle when they said that the evidence being interested was to be carefully scrutinized and had relied upon the statement of Khairait Muhammad as corroboration, but that in relying upon his statement as corroboration the learned Judges had erred, for, there were a number of reasons, not considered by the learned Judges, why the statement could not afford corroboration of the statements of the eye‑witnesses. Whenever interested persons claiming to be eye‑witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first. question to be considered is whether in fact they saw the occur rence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with A the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occur rence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may, have exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the' particular accused whose case is being considered did partici pate in the commission of the offence. The force that Such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circums tance of each case. However the circumstance itself must be proved beyond all reasonable doubt. This rule of prudence requiring corroboration of partisan evidence has generally been accepted by Courts and was accepted by all the Judges of the Federal Court of Pakistan in .4shraf and others v. The Crown (1955FCR93=PLD1956FC86) although the learned Judges were not in agreement as to what constituted corroboration. The learned Judges of the High Court accepted that Ghulam Muhammad and Kalu had seen the occurrence, but as these witnesses were interested and there was a possibility of implication of innocent persons, the learned Judges sought for corroboration of .their testimony. This corroboration they found in the state ment of Khairait Muhammad that soon after the occurrence the two appellants had been named as culprits by Ghulam Muhammad and Kalu. While it is true that a statement, made so soon after the occurrence that it excludes a hypothesis of implication of innocent persons, may be used as corroboration, it cannot in the first place be said that there existed in the present case such proximity of time between the occurrence and the alleged statement as will be a guarantee of the truth of the statement. The incident took place in the fields while the statement was made in the village. For the time of the occurrence we have to depend only on the word of Ghulam Muhammad and Kalu, but even according to the statement of these two witnesses and that of Khairait Muhammad, the interval between the occurrence and the statement would be about an hour. It was at about 1 a.m. that the two deceased went to find the cause of diminution of water, for according to the prosecution case the water had decreased about an hour after the deceased had taken their turn of water. The attack on the deceased took place not long after they started and Ghulam Muhammad and Kalu had spoken to Khairait Muhammad at about 2 a.m. The distance between the spot and the village is not clear from the record, but according to the prosecu tion the nearest Bhaini is at a distance of about half a mile from the place of occurrence and the village would obviously be at a greater distance. Considering the length of the interval between the occurrence and the statement it cannot be said that the possibility of implication of innocent persons was excluded. There was ample time for consultation when persons belonging to the complainants party collected at the spot and while Kalu and Ghulam Muhammad were coming to the village. In any case before the learned Judges used this part of thestate‑11 event of Khairait Muhammad as corroboration, it was necessary for them to consider whether the statement was true. The defence had challenged this statement of Khairait Muhammad. It had cross‑examined Khairait Muhammad as to why this statement was not made before the Committing Magistrate. It had questioned Ghulam Muhammad and Kalu as to whether they had made the statement attributed to them and both of them had denied having done so. There were a number of matters which had to be considered before the statement was found to be true. At the same time the veracity of this statement of Khairait Muhammad had become, so far as the learned Judges of the High Court were concerned, a matter of crucial importance, for this statement was the only corroboration offered of interested testi mony and on the acceptance or rejection would depend the conviction or acquittal of the appellants. Yet, in the judgment of the High Court there is no discussion as to whether the statement of Khairait Muhammad was true. There is no reference to any of the circumstances which would point to a conclusion that the statement was not true. The learned Judges just assumed the correctness of the statement and only considered the effect of its acceptance. Khairait Muhammad had said that names of the acquitted accused had been mentioned by Ghulam Muhammad and Kalu only while they were all on their way to the police station, but he did not remonstrate with Ghulam Muhammad and Kalu when they added these names and when the report was being recorded he never brought this fact to the notice of the officer recording the report. It is not the prosecution case that at any stage he sought to bring this matter to the notice of the investigating officers. He did not mention this fact in his statement before the Committing Magistrate, and when asked as to why he did not do so he said that he had not been questioned about it. In the Sessions Court he had made the statement in the examination‑in‑chief. It is not explained how the Public Prosecutor who had not questioned this witness in respect of this matter when he was examined in the Committing Magistrate questioned him with respect to it when he was examined in the Sessions Court: A suggestion has been made before us by the learned Advocate‑General that the witness may himself have informed the Public Prosecutor sometime before he was examined in the Sessions Court that Kalu and Ghulam Muhammad had named two persons only in the first instance and having received this information the Public Prosecutor may have thought it proper to introduce this matter in the examination‑in‑chief. In the first place, it does not appear why the conscience of Kalu became active only when the case was being heard in the Sessions Court. In the second place, the Public Prosecutor could not, just because he received some information from this witness introduce fresh material the result of which would be that three out of the accused would be acquitted although all the five accused were guilty according to investigation by the police. A more reasonable explanation of this move on the part of the prosecution appears to be that faced with the eventuality of the acquittal of all the five accused against whom there existed ,only uncorroborated partisan testimony it was considered expedient to get at least two out of the accused convicted by introducing this story through a Lambardar witness. This is an aspect of the matter which had been missed in the Sessions Court as well as in the High Court. Had the record remained what it was before the Committing Magistrate there was not much chance of any of the accused persons being convicted for there was against them only the uncorroborated testimony of interested witnesses. The learned Sessions Judge would have either to hang all the five accused or to acquit all of them and it would not be easy to satisfy his mind that innocent persons had not been implicated. This new matter was introduced not in the interest of the three accused who were acquitted but in the interest of the prosecution which it was apprehended would otherwise fail. We would not therefore accept this statement of Khairait Muhammad. But this is not all. Assuming that Kalu and Ghulam Muhammad had in fact named only the two appellants in the first instance and three others later, could the first state ment be relied upon as corroboration of their statement in Court ? That Ghulam Muhammad and Kalu gave the names of two persons in the first instance and later stated that there were five persons rather goes to show that they had not seen the occurrence at all. For Kalu there was no reason to remain in the fields at the time of the occurrence because his turn had finished before the turn of the deceased commenced. Also no good reason is assigned as to why Kalu and Ghulam Muhammad followed the two deceased. A suggestion was made by Ghulam Muhammad during his examination that the supply of water had decreased further and that is why he and Kalu followed the two deceased. But this story of further decrease finds no place in the first information report or in the statement of Kalu. The presence of ibrahim (P. W. 9) on the spot has not been accepted by the High Court because he had not been mentioned by Ghulam Muhammad and Kalu to Khairait Muhammad. His presence was even otherwise very improbable, for he was the one person who would have been attacked by the assailants if he was present. If the prosecu tion could falsely introduce Ibrahim it could also introduce Kalu and Ghulam Muhammad as eye‑witnesses although they had not in fact seen the occurrence. If we were to accept that Ghulam Muhammad and Kalu had made contradictory statements to Khairait Muhammad the case would have to be thrown out on the ground that we are not satisfied at all as to their presence on the spot and the question of corroboration would not arise. Another question that arises with reference to corroboration is whether the statement of a person can be corroborated by a previous statement which he is said to have made at or about the time of occurrence when he himself denies that he ever made the statement. As already observed Kalu and Ghulam Muhammad have denied having given two names to Khairait Muhammad in the first instance. It may be that in some exceptional circums tance even in the face of the denial of the witness who is said to have made a statement the previous statement may be used as corroboration but it should be clear that normally this should not be done. We are satisfied that the conviction of the appellants was not justified. We accept these appeals and acquit both the appellants. A. H. Appeal accepted. .