1998 PLP 1768 (SCMR)

S. 302

Appraisal of evidence

Evidence recorded against the accused at the trial was to be adjudged on its own intrinsic value and not on the strength of evidence led against co-accused in separate trial which was inadmissible

Ocular evidence found to be true could not be discarded merely because it had come from interested witnesses, - which, even otherwise, was corroborated by the abscondence of accused for five years

Prosecution evidence was also supported by medical evidence so far as involvement of accused in the crime was concerned

Conviction and sentence of accused were upheld in circumstances. (c) Penal Code (XLV of 1860)

S. 302

Evidence--Interested witness

Evidentiary value

Non-acceptance of the evidence of an interested witness is neither a rule of universal application nor a rule of law

Intrinsic worth of the evidence has to be kept in view while judging its evidentiary value.

[Witness]. Qurban Sadiq Ikram, Advocate Supreme Court for Appellant.' Altaf Elahi, Additional Advocate-General, Punjab for the State. Date of hearing: 19th May, 1998. ABDUR REHMAN KHAN, J.--The appellant was awarded death sentence plus fine of Rs.10,000 and on failure to pay it to suffer two years' R. I. on conviction under section 302, P.P.C., for the murder of Shamshad Ali Shah through judgment dated 6-8-1990 of the learned trial Judge. On appeal preferred by him the High Court by impugned judgment passed on 2-11-1992 maintained the conviction under section 302, P.P.C. but converted his sentence into life imprisonment and kept the imposition of fine intact. He impugned the legality of this judgment in petition in which leave has been granted.

2. Before referring to the other relevant facts of this case it would be proper to mention about the co-accused and the result of their trial in the case. Sher Muhammad, father and Ameer Muhammad brother of the appellant were co-accused with him as they had also been charged for murder in the F.I.R. Sher Muhammad was acquitted by the learned Sessions Judge in a separate trial on 20-1-1988 and Ameer Ahmad, although convicted by the trial Court, was acquitted by the High Court on 8-3-1989.

3. Imtiaz Hussain Shah (P.W.18) reported the incident of the murder of his father Shamshad Ali Shah in police station at 9-30 p.m. on 5-11-1983 wherein he stated that his father was Girdawar in Revenue Department and had left his house in the morning to attend his duty. In the evening at 7-30 he alongwith his brother Tajammal Hussain Shah (P.W.8) and Mushtaq Ali Shah his first cousin.(P.W.4) and were present in his house. They heard shots outside and ran towards that place. He saw their father running being followed by Nazeer Ahmed appellant (armed with .12 bore DB shot gun), Ameer Ahmad acquitted accused (having a pistol) and Sher Muhammad acquitted accused (armed with .32 bore revolver) who were firing and raising Lalkara. In their presence the appellant fired which hit his father on the left side of his back and second shot was fired by Ameer Ahmed which injured him on right side of his mouth and he fell down. The accused while firing ran towards the North. They identified them in the light of the electric bulb but could not follow them as they were empty-handed. Many others were attracted on hearing the firing. His father breathed his last there because of the injuries. Motive for the offence was given to be retaliation of the murder of the brother of the appellant who was killed three years back by Manzoor Hussain son of the deceased alongwith others.

4. It was argued by the learned Advocate representing the appellant that on the same evidence two accused have been acquitted, therefore, the appellant could not be held guilty on this evidence. The learned counsel while advancing this argument appeared to be oblivious of the rule laid down in numerous cases by this Court and the High Courts that falsus in uno falsus in omnibus (false in one false in all), is no more operative and the rule of sifting the chaff from grain is to be applied while apprising the evidence in criminal cases. Moreover, in this case the factual position is that the two acquitted accused were not tried alongwith the appellant but they were acquitted in two separate trials conducted separately against each of them. The evidence, thus, recorded against acquitted accused in the case in separate trial would not be taken into consideration in the trial against the appellant unless that had been brought on the record of the present proceedings against the appellant in accordance with the law. The deposition of the witnesses examined in the trial against the appellant will be adjudged on its own intrinsic value and not on the strength of the evidence led against the co-accused in separate trial as legally no reference can be made to that evidence while assessing the guilt or otherwise of the accused in this trial; as that is inadmissible and could not be used in favour or against the appellant. It was next argued that the ocular account furnished in this case comes from the interested witnesses and could not be acted upon. P. W.8, P. W,9, and P, W.18 have deposed as eye-witnesses in this case; out of them P. W.8 and P. W.18 are sons of the deceased while P.W.9 is his nephew. It is correct that another son of the deceased had been charged for the murder of the brother of the accused and on that count animus was existing between the two families. However, it is not a rule of universal application that the evidence of interested witnesses can, in no way, be accepted as it is not so provided in any law and, therefore, cannot be termed as a rule of law. It is the intrinsic worth of the evidence which is to be kept in view while judging its evidenciary value. If on scrutiny in the light of the surrounding circumstances of a case it is found that the evidence of an a interested witness rings true and that he is a truthful witness then it would not be legally justified to discard his evidence merely because he happens to be an interested witness. It was next argued that there is no sufficient corroboration of the eye account and in absence of corroboration the deposition of the eye witnesses could not be relied on for conviction. We had already observed that if the witness is proved to be truth fuss then his evidence would hardly require any corroboration; but in the present case the corroboration is to be found in the factum of abscondence of the accused from 5-1-1983 till his arrest on 30-8-1988 which almost comes to five years. This abscondence for such a long period has not been satisfactorily explained as the explanation that he had gone to take part in 'Afghan Jehad' does not find any support from any other evidence and to say the least this explanation is unacceptable. The learned counsel in the end laid much stress on the fact that there was conflict in the statements of the eye witnesses and medical evidence. He clarified that the distance in the site plan between the assailant and the deceased at the time of firing has been shown as 15 feet while the edges of some wounds were burnt and some had sign of smoke around it which, according to him, were only possible if the injuries were caused from a close range. It was pointed out that according to narration of facts in the F.I.R., the injuries should have been on back and not on front as has been shown by the Doctor. It appears that this point was neither urged before the trial Court nor before the High Court because it does not find any mention in the two judgments. Site plan is not substantive evidence and the distance shown therein would not detract from the veracity of the Court statement of the witness so as to devalue its value. No graphic description of the distance or movement-could be given by the complainant in the F.I.R., at the time of that tense situation when he saw his father being fired at. Therefore, mere burning of the wound would not indicate that the witness was not present on the spot. Moreover the deceased had one injury on the back which was attributed to the appellant and as for involvement of the appellant is concerned, to that extent the prosecution evidence is supported by the medical evidence. We find no merit in this appeal and accordingly dismiss it. N.H.Q./N-22/S Appeal dismissed