2010 PLP 566 (SCMR)

RAHMAT HUSSAIN JAFFERI, J.

On 10-1-2002, the learned Special Judge, Anti Terrorism Court, Sargodha convicted the appellant Rohtas Khan for an offence punishable under section 302(b)/34, P.P.C. and sentenced him to death. On appeal, the learned High Court, while maintaining the conviction under section 302(b)/34, P.P.C. converted his sentence of death to imprisonment for life with direction to pay an amount of Rs.2,00,000 as compensation to the legal heirs of deceased Amir Abdullah Khan under the impugned judgment dated 30-4-2002. The appellant filed the Jail Petition bearing No.207 of 2002 before this Court in which leave was granted, vide order dated 12-5-2006, to reappraise the entire evidence for the same administration of criminal justice.

2. Brief facts of the case are that the deceased Amir Abdullah Khan, son of the complainant Hafiz Muhammad Khan, was serving in Pakistan Army and was in his village on leave. On 10-2-1999, the complainant sent him to a shop to purchase some articles. As soon as the deceased came out of the house the complainant and his son Shah Alam Khan (P.W.10) also come out of the house to inform the deceased to purchase some more articles. When they came out of the house they saw the deceased going at a distance of 10/15 paces (Karams) from them. As he reached near the mosque Mosooma Wichaley Wali suddenly the appellant and absconding accused Allah. Nawaz Khan, both armed with Kalashnikovs emerged. They challenged the deceased that he would not be spared and so also other family members of his uncle Allah Dad. Thereafter, they started firing from their weapons, which hit the deceased, who fell down on the ground and then the appellant and absconding accused ran away. The complainant and P.W.10 went to the deceased and found him lying dead.

3. The motive alleged was that the absconding accused Allah Nawaz Khan had got registered a case against Allah Dad, uncle of the deceased and brother of the complainant, about the abduction of his brother Madad Khan. The complainant took oath about the innocence of Allah Dad, therefore he was declared innocent. Because of the taking oath the incident took place.

4. During investigation, the police collected only oral evidence of P.Ws.9 and 10 coupled with medical as well as circumstantial evidence and report of Chemical Analyzer. At the trial, the prosecution examined 12 witnesses.

5. Learned counsel for the appellant has argued that P.Ws.9 and 10 are not only related inter se and with the deceased but they are inimical towards the appellant, therefore, their evidence requires strong corroboration; that presence of P. Ws.9 and 10 was highly doubtful as the purpose shown by them for coming out from the house does not appeal to common sense; that the witnesses deposed that indiscriminate firing up to 100 shots was made by the culprits but neither any empty was found available at the place of incident nor any bullet mark was found on the walls of adjoining houses; that abscondence of the accused has no value when the oral evidence is disbelieved; that no proper procedure was followed for declaring the appellant as absconder and that there is admitted enmity between the parties, therefore, such enmity cuts both ends. He has further argued that the incident was not witnessed by the P.Ws., therefore, the case is highly doubtful.

6. Conversely, learned counsel for the State, has supported the impugned judgment by arguing that P.Ws.9 and 10 are natural witnesses; that the incident took place at a distance of about 30 paces (Karams) away from the house of the complainant; that evidence of the witnesses is corroborated by the medical evidence coupled with abscondence of the appellant; that few days prior to the incident the appellant had committed murder of Allah Dad's son and that he was absconding in that case. However, he has admitted that no empties 9f Kalashnikov were lying at the place of incident or bullet marks were found on the walls of houses.

7. Having heard the arguments of learned counsel for the appellant as- also for the State and considering the evidence available on record with their assistance, we find that P.W.10 is son of the complainant so also the deceased, therefore, they are related inter se. Enmity between the parties has been admitted as such the witnesses are inimical towards the appellant. In such a situation both the P.Ws. have become interested witnesses therefore as per general rule their evidence requires corroboration. We are conscious of the fact that the rule of corroboration in case of interested witnesses is not an inflexible rule as held in the cases of "Niaz v. State PLD 1960 SC 387, Nazir v. State PLD 1962 SC 269, Muhammad Ismail v. Khushi Muhammad PLD 1974 SC 37, Abdul Rashid v. Umid Ali PLD 1975 SC 227 and Muhammad Ali v. State 1985 SCMR 203". However, in appropriate cases such rule can be dispensed with. In order to bring the case out of the scope of general rule the evidence of interested witness is to be scrutinized very carefully. Firstly, it is to be seen whether the witness is trustful and tested on the touchstone of inherit merit of his statement. Secondly, in the circumstances of case the statement is reasonable, probable or plausible and could be relied upon. If a statement satisfies the above requirements, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration. Reference is invited to "Haroon v. State 1995 SCMR 1627 and Muhammad Rafique v. State 1977 SCMR 457".

8. Keeping the above principle in view, we have examined the evidence. The story narrated by both the P.Ws. is that they came out from the house to inform the deceased to buy some more articles does not appeal to common sense as in such a situation there was no need for two persons to come out from the house. It is usual practice that in such a situation always father will direct the son to do the needful. Further when they came out from the house the deceased was just at 10/15 paces away from them therefore they could have called him to inform to buy other articles. This was the natural conduct of an elder of the house particularly the father but instead thereof they were following the deceased and when the deceased reached near the mosque the incident took place. It is the case of the prosecution that there was a shop near the place of incident but the Investigation Officer in his statement denied the above fact by admitting that there was no shop near the place of occurrence.

9. Apart from the above facts, indiscriminate firing of about 100 rounds was made at the place of incident. This can be visualized from the fact that the deceased had received as many as 26 fire-arm injuries on his person as per medical report. It was but natural that empties of Kalashnikov should have been present at the place of the incident but they were missing. There was no evidence that the empties were removed or taken away from the place of incident by the culprits. On the contrary the complainant admitted that he collected the empties and presented the same before the police but his statement is neither supported nor corroborated by the Investigation Officer or P.W.10. Nevertheless the P.W.10 categorically stated that the police did not collect the empties from the place of incident. If the complainant had collected the empties which were in large number then this fact would not have went unnoticed. P.W.10 would have seen such fact but he did not state so. Furthermore, the bullet marks would have been present on the walls of the houses as the incident took place in a street and the houses were constructed on its both sides.

10. The alleged motive was against the complainant, but it is noted that the appellant did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P.Ws. were not present at the place of occurrence.

11. After scrutinizing the evidence, we are of the considered view that the evidence of P.Ws.9 and 10 is not .plausible, improbable, unreasonable and there are inherent defects in their evidence, therefore, the case does not fall within any exception where the statement of interested witness can be accepted without any corroboration which is also lacking in the present case.

12. The learned High Court gave importance to the abscondence of the appellant. No doubt it is a relevant fact but it can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. This Court in the case of Asadullah v. Muhammad Ali PLD 1971 SC 541 observed that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence this Court in the case of Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 observed that abscondence is only a suspicion circumstance. In the case of Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632 this Court observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan v. State 1999 SCMR 1220) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State 1999 SCMR 304 it was observed that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali 1992 SCMR 814, Pir Badshah v. State 1985 SCMR 2070 and Amir Gul v. State 1981 SCMR 182 it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone.

13. In the light of what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. Therefore, the conviction and sentence awarded to the appellant under the impugned judgment are set aside. He is acquitted of the charge. He shall be released forthwith if not required in any other custody case. Resultantly, the' appeal is allowed. N.H.Q./R-13/SC Appeal allowed.