1985 PLP 453 (SCMR)

(e) Penal Code (XLV of 1860)‑‑ ‑‑‑S.302/34‑‑Murder‑‑Serious enmity between accused and his step brothers who appeared as eye‑witnesses‑‑Such enmity not denied‑ Implicit reliance, held, could not be placed on their testimony without corroboration, despite the fact that such eye‑witnesses prima facie seemed to be educated persons.‑‑[Witness]. S.M. Zafar and M. Bilal, Advocates Supreme Court and Maqbool Ahmad Qadri, Advocate‑on‑Record (absent) for Appellant. Ghulam Ahmad, Advocate Supreme Court and Rao M. Yousuf Khan, Advocate‑on‑Record for the State. Dates of hearing: 5th and 6th November, 1984. MUHAMMAD AFZAL ZULLAH, J.‑‑ This appeal through special leave is directed against judgment dated 12‑6‑1979 of the Lahore High Court; whereby a criminal appeal arising out of a murder case was partly allowed, in that, two convicts Abdul Majid and Abdul Aziz, were acquitted while the conviction and sentence of death as also fine awarded to Allah Rakha appellant were affirmed. The facts and circumstances are that Allah Rakha and his two brothers‑in‑law Abdul Majid and Abdul Aziz as also his father‑in‑law Ahmad Din were tried for the murder of Allah Ditta a step‑brother of Allah Rakha and for the attempted murder of his other two step‑brothers namely Abdus Sattar and Abdul Khaliq P.Ws. The occurrence took place on 22nd of March, 1976 at 3‑30 p.m. The F . I . R . was lodged on the same day at 4 p.m. by Abdus Sattar P.W. at the Police Station which is at a distance of 3 miles. The appellant was said to have fired at the deceased with a revolver five times when the latter was proceeding to his field from his house and was near the house of Ahmad Din accused. Abdul Majid and Abdul Aziz allegedly caused injuries with Kassis to him while Ahmad Din their father was attributed a Lalkara. The deceased suffered 5 bullet injuries and some incised wounds. The motive is two‑fold: One, that Mst. Amina, the sister of Allah Ditta (step‑sister of the appellant) was married to Abdul Majid accused. She through the help of Allah Ditta (deceased) obtained an ex parte decree for dissolution of marriage and married another person named Rafiq. Her Rukhsati took place 4 days prior to the occurrence. This it is stated gave immediate cause for the accused party to attack the deceased. Secondly, there was a long chain of civil and criminal litigation between the step‑brothers inter se Allah Rakha appellant on one side and the two eye‑witnesses together with the deceased on the other. It also needs to be mentioned here that Ahmad Din accused is the paternal‑uncle of Allah Rakha and his step‑brothers. The prosecution case was supported by the ocular evidence furnished by Abdul Khaliq and Abdus Sattar P.Ws. and the recovery of the weapons of offence namely blood stained Kassis from Abdul Majid and Abdul Aziz and a revolver from Allah Rakha appellant. While the blood on the Kassis was found to be of human origin the revolver was found to have matched with the two empties recovered from the spot. The plea of the accused was of total denial with an assertion that they had been falsely implicated due to long‑standing enmity between the parties. The learned trial Court accepted the ocular evidence and the recoveries as trustworthy and convicted Abdul Majid, Abdul Aziz and Allah Rakha appellant for murder. The former two were awarded life imprisonment and fine of Rs.5,000 each while Allah Rakha was awarded sentence of death and fine of Rs.5,

000. Half of the fine when recovered was ordered to be paid as compensation. Ahmad Din was extended benefit of doubt on account of the allegation being only of Lalkara. In the High Court the plea that the eye‑witness account could not be accepted on account of serious enmity between the parties without strong corroboration, was accepted. It was held that the recovery of Kassis from Abdul Majid and Abdul Aziz could not be used against them because it was doubtful whether they were in fact stained with human‑blood when recovered but before examined by the Chemical Examiner. That being so their conviction was set aside on extension of benefit of doubt because no corroboration was available against them. Regarding Allah Rakha although no implicit reliance was placed on Mohammad Sadiq, the recovery witness, it was held that there was nothing wrong to accept the testimony of the Investigating Officer in so far as the recovery of revolver at the appellant's instance is concerned. The same having matched with the crime empties, it was treated as sufficient corroboration. His conviction and sentences were accordingly affirmed and his appeal was dismissed. Leave to appeal was granted in order to examine the following and related questions raised at the time of the grant of leave to appeal: "that the presence of the two crime empties at the spot, in spite of their mention in the F.I.R. was improbable as the revolver used was not a self‑ejecting weapon. Moreover, as it had a chamber for 7 bullets, there was no occasion for reloading this weapon and for this reason also the presence of the crime empties at the spot was doubtful. In this connection he also urges that the complainant had also not stated in the F.I.R. that the weapon was reloaded although at the trial the witnesses have improved their statements by saying so which is again not free from suspicion. The learned counsel further submits that the High Court had suspected the bona fides of the Investigating Officer when it disbelieved the presence of blood on the Kassis and on the same footing it was unlikely that the petitioner would have kept the unlicensed firearm in the box from where it could be produced when the petitioner could have easily abandoned it as he was at large for six days. Therefore, this corroborative evidence should not have been taken into consideration particular on the footing of the evidence of the same let of witnesses. The learned counsel also submits that other persons could have been made recovery witnesses as they were available at that time but the Investigating Office‑ selected Sadiq (P.W.6) who is the father‑in‑law of Abdul Sattar having animus against the petitioner and, therefore, his evidence could not lend any assurance to the recovery of the revolver; and while not placing any reliance on his testimony in regard to the other recoveries, the High Court yet impliedly accepted it qua the recovery of the revolver as against the petitioner." Learned counsel for the appellant has reiterated the afore‑noted arguments and has also taken us through the relevant parts of the evidence. In reply the learned counsel for the State has submitted that the appellant and the deceased were not only step‑brothers inter se but they were also married to two real sisters. Accordingly Abdul Khaliq and Abdul Sattar the brothers of the deceased would not have falsely implicated him. The enmity noticed by the learned Courts below it was further urged was only of 4/5 years duration. He also argued that the enmity between Allah Rakha appellant and his step‑brothers had nothing to do with the in‑‑laws of Allah Rakha, that is, Ahmad Din and his sons the co‑accused of the appellant who if at all had grudge it related to the re‑marriage of Mst. Amina. Learned counsel pointed out that all the family members of Ahmad Din were not involved in this case because he had two other sons namely Abdul Qadir and Abdul Malik who were not named as accused persons. Moreover, according to him Abdul Malik and Abdus Sattar P.Ws. gave correct account of the firing of 5 shots at the deceased because as argued the doctor also found 5 bullet wounds. Regarding the empties he suggested that an explanation in favour of the prosecution can now be visualised although there is no mention thereof in the evidence nor it has been adopted by the Courts below: namely, that the appellant might have carried the revolver in full loaded position when he started firing. 5 shots were fired at the deceased and two at the eye‑witnesses. And further that although there was no more firing, the culprit might have re‑loaded the revolver so as to ensure safety during escape from the place of occurrence. Not only this learned counsel further assumed that while unloading the revolver the culprit collected 5 empties but failed to pick up the remaining two which were left at the spot or as surmised by the learned counsel there were more empties left at the spot but the Investigating Officer failed to find all of them. Regarding a possibility of false implication he argued that the step‑brothers of Allah Rakha would not gain by involving him falsely because his share of land would be inherited by his sons and would in any case not go to the complainant side. Lastly, while agreeing that Sadiq being father‑in‑law of Abdus Sattar P.W. would have to be bracketted with him in so far as the question of both being interested witnesses is concerned but the testimony of the Investigating Officer regarding recovery of the revolver from the appellant can safely be: relied upon in this case. In conclusion he argued that there was sufficient corroboration against Allah Rakha in the recovery of the crime weapon which matched with the crime empties. It is one of the unfortunate cases where members of the same family are deadly enemies of each other. It has been so found by the two learned Courts below and after going through the relevant evidence we have no reason to differ with the .assessment thereof on this point. The approach of the High Court regarding the witnesses appearing from either side against the other, not to be depended upon without independent corroboration, was undoubtedly salutary and thus unexceptionable. We may further add that the enmity between appellant and his step‑brothers was not only on account of serious proverbial property disputes of step‑brothers having different mothers; but also as accepted by Abdul Khaliq P.W. himself it involved serious criminal cases. In one of them (three years' prior to the occurrence) the two eye‑witnesses and the deceased were prosecuted for an offence under section 392/34, P.P.C. on the behest of the appellant. The argument of the learned counsel for the State that the said case ended in acquittal will not make the matter any better for the complainant side; because, if they were falsely implicated it was a worst instance of wreaking vengeance due to enmity by the appellant against them, through false implication in serious case of robbery. If that could be so it is not unimaginable that this time the other party having opportunity of falsely implicating the appellant in a more serious criminal case might have I done so. Thus, agreeing with the learned Judges of the High Court wet affirm their decision in the circumstances of this case, in so far as the need for strong corroboration is concerned. But the question arises whether the prosecution has succeeded beyond reasonable doubt in furnishing the required corroboration against the appellant. The arguments of the learned counsel for the appellant regarding recovery of the empties, the recovery of the revolver and the interest of Mohammad Sadiq the solitary recovery witness in so far as their factual aspects are concerned, find sufficient support from the evidence. Nothing has been said from the side of State in so far as the evidence is concerned. The explanation regarding recovery of only two empties when during re‑loading seven would have come out of the chambers of the revolver is too bald to be accepted in a case like the present one. If the eye‑witnesses could see the re‑loading and the prosecution could rely upon this piece of evidence they could as well have deposed regarding the explanation offered by the learned counsel, but there is nothing in the evidence in that behalf. Moreover, it is not possible to imagine that the culprit would be so concerned with the collecting or picking up of the empties at the very moment when the occurrence was in progress. Regarding re‑loading also it needs to be observed that it seems highly improbable that after disabling the deceased and when the eye‑witnesses were in the process of running away the culprit would feel the need of re‑loading so as to secure his escape. The situation at the spot in this case did not warrant any such re‑action. Further even if it be assumed that the culprit left two empties at the spot, there is no certainty that the revolver alleged to have been recovered from the appellant and which matched with the empties was in fact recovered from him and further that the recovery took place on the day shown by the Investigating Officer. Mohammad Sadiq who is the father‑in‑law of Abdus Sattar P.W. was the solitary witness to support this recovery. His interest in supporting the prosecution case and involving the appellant was no less than his own son‑in‑law. Mohammad Ismail the other recovery witness like his brother Mohammad Sadiq the third eye‑witness, was given up by the prosecution. There could be some possibility of these two given up P.Ws. to have (when brought under cross‑examination) conceded some truth though, they had also an interest in the complainant side‑‑they were their tenants. We are satisfied that Mohammad Sadiq the recovery witness could not be relied upon without further corroboration, regarding the recovery of the revolver. Although there are some cases in which the testimony of an Investigating Officer was relied upon in the matter of recovery of crime weapons. But that depends upon the circumstances of each case as also the level of credibility of the Investigating Officer concerned. This case learned counsel for the appellant made reference to evidence show that the conduct of the Investigating Officer was not above board. The submission is supported amongst others by the approach of the High Court also namely that the recovery of the Kassis was not used as corroboration against Abdul Majid and Abdul Aziz; because serious possibility was visualised regarding the planting of human blood on them during the investigation. It could not have been done without the complicity of the investigating officer. That being so his testimony also without further independent support cannot be relied upon for crime weapon from the appellant. That accepting the recovery of the crime so if the weapon was obtained otherwise than as shown to have been recovered from the appellant (but only planted on him whenever arrested), it is not difficult to imagine that the empties before being sent to the Forensic Science Laboratory, might have been fired from this very revolver, which was subsequently shown to have bon recovered from the appellant. After having carefully examined all the aspects of the recovery of the crime empties and the revolver we are satisfied that the learned Courts below did not properly read the evidence in this behalf nor did they noticed the principal and salient features pointed out above. Accordingly we hold that this piece of evidence could not be used against Allah Rakha appellant. We looked for any other material, which can be used as corroboration against Allah Rakha and also asked the learned counsel for the State to point out if any, but without any result. The rule that (in the circumstances of this case) on account of serious enmity between the appellant and his step‑brothers who appeared as eye‑witnesses, implicit reliance could not be placed on them without corroboration, prevails despite the fact that the eye‑witnesses prima facie seem to be educated persons. In reality both the sides have been locked against each other in unfortunate usual litigation between the two branches of progeny of their father. The relationship of the parties inter se, is over‑shadowed by the strong enmity; which, it needs to be noticed has not been denied either before the Courts below or in this Court. Accordingly in the light of the foregoing discussion while giving benefit of doubt to the appellant we accept his appeal and acquit him. He shall be released forthwith if not required to be detained in any other matter. M.Z.M. Appeal accepted.