P L D 1956 Federal Court 86 (PLP)

MUHAMMAD MUNIR, C. J.

I agree that the appeal of Raja and Hussain be allowed. In the case of Ashraf, however, I feel a fundamental difficulty in differing from the High Court. Because of the partisan character of the evidence the learned Sessions Judge thought it to be unsafe to convict anyone in the absence of "convincing corroboration" of that evidence. Dealing with the group in which the case of Ashraf appellant fell the learned Judge said :‑-- "No particular part is assigned to any of the remaining accused. All that the P. Ws. suggest is, that the persons carrying the guns and the pistols, i.e., Hussain, Hakim, and Ashraf, accused, fired towards the complainant party, the first two by rifles and the last mentioned with a pistol. Their shots did not hit anyone. The presence of empty pistol and rifle cartridges may be taken as a corroboration of the statements of the eye‑witnesses. I do not, however, regard this, as a sufficient and a reliable corroboration of the prosecution story. The facts disclosed, are not incompatible with the innocence of these three or the other accused. It would be unsafe to convict them, merely on the strength of the evidence, adduced on record:" The High Court, however, thought that the fact that only Ashraf appellant was alleged by the witnesses to have fired with a pistol and some missed pistol cartridges and the shell of a fired pistol cartridge were recovered from the scene, was a sufficient corroboration of the eye‑witnesses evidence. The following passage in the judgment indicates the learned Judges' approach to this appellant's case :‑-- "We now address ourselves to the Crown appeal against acquittal. The learned Advocate for the Crown pointed out that the circumstances of the case as a whole were favourable for the assumption that the witnesses have not used their partisanship injuriously. A large number of persons must have joined the attack to be able to frighten the complainants into their dens in broad daylight and they must have been armed with various weapons to be able to cause injuries of different descriptions. The police recovered two blank cartridges of a 303 rifle from the courtyard of Hakim Ali and these must be the cartridges used by Ali Dad deceased. Then nine empty cartridge, were recovered from the roof of Bahadur and an equal number from the roof of Hakim Ali. 1n addition three missed bullets (cartridges and one empty revolver bullet (cartridge) were recovered from the roof of Bahadur. All these twenty two in number must Dave been used by the accused. Next, there were on the dead body 24 incised wounds which were clearly caused by hatchets and six punctured wounds which must have been caused with spears. According to the prosecution, Muhammad Akbar and Aslam appellants had rifles in addition to Aslam's grenades. Two other persons who had rifles were Hakim and Hussain accused, Ashraf was the only person who, according to the prosecution, had a pistol, and, since one blank pistol cartridge was also recovered by the police, this is sufficient confirmation of the evidence given by the witness in respect of Ashraf accused". The position, therefore, is that unless we say that the recovery of some missed pistol cartridges and the shell of a fired cartridge could not be held by the High Court to be sufficient corroboration, we cannot interfere with the conviction. In the statement of the rule relating to corroboration in criminal cases it has, I think, never been held that corroborative evidence should itself be sufficient for conviction. Even in cases where as a matter of law corroboration is required, all that is insisted upon is that the corroborative evidence should tend to show that the witness or witnesses evidence that the accused took part in the crime is true. In the present case only one man, namely, Ashraf appellant was stated by the witnesses to have been armed with a pistol which he fired from the roof of Bahadur. Of the culprits who fired rifles some are alleged to have posted themselves on the roof of Bahadur and some on that of Ramzan. During the investigation three missed cartridges of a pistol or revolver and one empty shell of a cartridge fired from a similar weapon were recovered from the roof of Bahadur. This circumstance, in my opinion clearly to tends to show that this appellant was one of the culprits. If we were to hold that corroborative evidence must be such as would show that it was this appel lant who fired a pistol from the roof of Bahadur we would practically be demanding, corroborative evidence which should itself be sufficient for conviction, because if the other evidence establishes that it was the appellant who fired a pistol from the roof of Bahadur the evidence of the eye‑witnesses would be superfluous and no question of the corroboration of their evidence would arise. To say that certain witnesses require corroboration and then to lay down that the corroborative evidence must show that the accused did the precise act attributed to him by the witnesses is tantamount to doing away with the evidence of those witnesses. And the same would be the result if the corroborative evidence required is such as is incompatible with the innocence of the accused. The true rule governing such situations in my opinion is that the corroborative evidence should at least tend to show that the evidence of the witnesses when they name the accused as taking part in the crime is true. In my view, the circumstantial evidence mentioned above conclusively estab lishes that among the assailants there was on the roof of Bahadur a person who was firing a pistol and the only hypo thesis consistent with the innocence of the present appellant would be that while the witnesses saw and identified who the man with a pistol was, they decided not to name that man and substituted the appellant for him. And where the question is whether a person has or has not been substituted for the real offender the position is basically different from the one where what is urged is that an innocent man's name might have been falsely added to the list of actual offenders. While the latter possibility cannot be ruled out in this type of cases and every Judge administering criminal justice in the Punjab is fully aware of it, cases tan indeed be extremely rare‑I for my part cannot recall a single one where the witnesses conspire to let the real offender go scotfree and substitute for him the name of an enemy. If the culprits are not previously known, as for instance, where a dacoity and murder have been committed by unknown persons or where strangers have been hired as assassins by the opposite party, it is quite possible that the name of members of the opposite party may be substituted for or added to the list of unknown criminals. But the present is not a case of that type. The crime was, committed in the heart of a village in broad daylight by a gang of persons who had to avenge the murder of a relative of theirs. There can, therefore, .be no question of unknown persons taking part in the crime. Accordingly the witnesses could have no conceivable motive for static that the man who was armed with a pistol was the appellant when in fact somebody else equally inimical had performed the part that is being assigned to the appellant. In my view the test applied by the High Court was sufficiently safe and avoided all reasonable possibility of a wrong conviction. For these reasons, I would dismiss Ashraf's appeal. SHAHAB‑UD-DIN, J.‑‑

The three appellants and eight other were tried by the Additional Sessions Judge, Gujrat, for offences punishable under sections 302, 307, 452, 148 and

201. P. P. C. The Additional Sessions Judge acquitted the present appellants and six others and convicted accused Muhammad Akbar and accused Aslam of the offences of murder, attempt ed murder and the offence punishable under section 452, P. P. C. Muhammad Akbar was sentenced to death and Aslam 'to transportation for life for the offence of murder and both were sentenced also to various terms of imprisonment for the other offences. Muhammad Akbar arid Aslam appeal ed to the High Court while the Crown appealed against the acquittal of the other accused including the present appellants the High Court of Lahore confirmed the convictions and sentences imposed on Muhammad Akhar and Aslam and dis missed their appeal. The appeal of the Crown was accepted only in respect of the present appellants and they were con victed by the High Court for murder and sentenced to trans portation for life. Muhammad Akbar and Aslam and the present appellants applied to this Court for special leave to appeal from the judgment of the High Court. Special leave was granted only to the present appellants and the petition was dismissed as far as Muhammad Akbar and Aslam were concerned. The case for the prosecution was to the following effect. In the village of Shahabdiwal in the District of Gujrat, where the occurrence took place, there were two rival parties, one of Fazal Dad .(P. W. 4), to which the deceased Ali Dad and the eye‑witnesses belonged, and the other of the accused. About a year and a half prior to the occurrence Fazal Ali and Hakim' who were near relatives of some of the accused in this case, were murdered and in connection with those murders Ali Dad in respect of whose murder the appellants have been convicted and some of the P. Ws. and others were tried but ultimately they were acquitted ; and since that acquittal the accused party was bent on taking revenge against them. On the' 11 th February 1953 at about 8 a.m. the 1 I accused armed with hand‑grenades, rifles, a pistol, hatchets and spears attack ed the, deceased Ali Dad and his men. Ali Dad took a rifle which he was keeping in the house , of Hakim Ali and fired once or twice and then tried to run away but he was shot dead by Muhammad Akbar. Some of the witnesses who were present, sustained injuries. After Ali Dad fell down the appellants inflicted number of injuries on him and carried away his body, and severed the head. The head and the trunk were recovered subsequently at the instance of accused Aslam. There was a bullet injury on accused Muhammad Akbar and the explanation of that injury was that early in the morning' of the occurrence while Muhammad Akbar was returning from a bath he was attacked by five of the accused who were armed with rifles, pistol and kulharies and it .was in that tran saction that he sustained the bullet injury and thereafter was incapable of firing at Ali Dad. The other accused stated that they had been falsely implicated on account of enmity There were eight eye‑witnesses and three other with asses who saw the .accused going to the place of occurrence immediately before it took place and returning from those after the occurrence. From the place of occurrence three empty rifle cartridges and one empty pistol cartridge were recovered. The Additional Sessions Judge convicted only Muhammad Akbar and Aslam. He acquitted the other accused on the ground that it was unsafe to convict them merely on the evi dence of the occurrence witnesses and that the recovery of empty cartridges from the scene of offence was not a sufficient and a reliable corroboration of the prosecution story'. The learned Judges of the High Court also were not prepared to act solely on the evidence of the principal witnesses. They observed that the Sessions Judge was right in looking for "convincing corroboration.". As they had no doubt about the participation of Muhammad Akbar and Aslam in the crime they dismissed their appeal. But, in dealing with the appeal filed by the Crown, they took the view that the recovery of a blank pistol cartridge considered with the version that only one of the appellants was armed with a pistol furnished the required corroboration in respect of appellant Ashraf. With regard to appellant Raja the learned Judges relied on the fact that he had‑ a strong motive to wreak vengeance against the de ceased and his men for the murder of his brother Fazal Ali. The view taken about appellant Hussain was that he was merely a tenant of accused Aslam and not his partisan and that therefore he would not have been implicated if he had not actually taken part in the occurrence. It was contended for the appellants that the circumstances relied upon by , the learned Judges against appellant Ashraf and Raja did not afford the required corroboration and that the conclusion that appellant Hussain was a mere tenant and riot :a. partisan was not correct. In my opinion these conten tions are, well founded. It is clear from the judgment of the High Court that the learned Judges considered corroboration necessary because the witnesses were partisans of the deceased and it was possible that the accused who belong to the rival faction were involved without their having, participated in the occurrence. That being so, corroboration of the interested testimony should be such as would remove the doubt that the accused have been falsely implicated. Such corro boration was available in respect of accused Muhammad Akbar in the fact that he had a bullet injury of the same duration as that of the injuries of P. W. 18 and the deceased. In the case of accused Aslam there was the circumstance that he pointed out the places from where the trunk and the body of the deceased were recovered. But the recovery of a single blank pistol cartridge from the scene of occurrence sup ports only the evidence that one of the assailants was armed with a pistol and not the evidence that appellant Ashraf was that assailant. The fact that there was only one assailant arm with a pistol is of no significance as the learned Judges doubted the, impartiality of the witnesses and not their capacity to iden tify the a assailants.' They repelled the contention of the accused that it was not possible for the witnesses to identify 'the assailants. In the absence of evidence connecting the cart ridge with appellant Ashraf, his conviction can rest only on t the very evidence the impartiality of which is doubted. He is a member of the rival faction and the possibility of his implication without his participating in the occurrence cannot reasonably be excluded. As regards appellant Raja the ground on which his acquittal has been set aside is that he had a strong motive for taking revenge in respect of the murder of his brother Fazal Ali of which the deceased and his party had been accused. But the same ground can very well be urged in support of the defence that this appellant was falsely implicated. The motive therefore can hardly be said to be l a " corroboration " of the evidence against this appellant Further his father Sardara whose acquittal has not been set aside had an equally strong motive. The observation of the learned Judges that it was possible that he left it to his. son to take revenge is based on mere conjecture. Another accused, Rehim Dad, whose acquittal has, not been set aside had an equally strong motive to attack the prosecution party as he is the brother of Hakim who was murdered along with Fazal Ali. As for appellant Hussain the reason given for setting aside his acquittal is that the only connection between ‑him and the other accused was that he was tenant of accused Aslam and that, therefore, he would not have been falsely implicated. But as pointed out for the appellants D. W. 4 has deposed that this appellant and the other accused belong to the same party. His case, therefore, rests on the same footing as that of the other accused, whose acquittal has Pot been interfered with by the High Court. I would, therefore allow the appeal, set aside the convic tions and sentences imposed on the appellants and acquit them. I agree that the appeal be accepted. In view of the majority decision, the appellants in this case are acquitted, and set at liberty forthwith. A.H. Appeal allowed.