1993 PLP 87 (SCMR)

SAJJAD ALI SHAH, J.‑‑‑This appeal with leave of the Court is directed against judgment dated 21‑2‑1989 of Division Bench of High Court of Sindh, Karachi, whereby conviction and sentence of death under section 302, P.P.C. of respondent No.1 (Ghulam Murtaza) is set aside by allowing Cr Appeal No.162 of 1988 and rejecting reference in Confirmation Case No.7/88.

2. Briefly stated relevant facts in the background giving rise to this appeal are that incident took place on 19‑12‑1983 at 6‑30 p.m. in the hotel of Hafiz Shemir Ali near Village Subedar Muhammad Hassan Solangi Deb Kandiaro within the limits of Police Station Kandiaro, District Nawabshah (as it was then). At that time deceased Pathan, eye‑witnesses Uris and Shafi Muhammad and many other persons were watching programme on T.V. Ghulam Murtaza walked in armed with hatchet and gave hatchet blow with sharp side to Pathan on his head who became injured and fell down. Ghulam Murtaza fled away from the place of occurrence. P.W. Muhammad Uris went and informed his father Sojhro Khan about the incident, who rushed to the scene of offence and found his nephew Pathan injured and unconscious. Sojhro Khan took injured to the hospital and then came to the police station where report was lodged at 7‑30 p.m. on the same day. P.W.7 A.S.I. Abdul Rehman after registering F.I.R. went to the hospital and prepared Mashirnama of injuries of Pathan who succumbed to his injuries on the following day at 8 a.m. A.S.I. then went to the hospital and prepared inquest report and took steps for post‑mortem examination. He came to the place of occurrence, secured blood stained earth and prepared Mashirnama. He recorded statements of witnesses and subsequently arrested Ghulam Murtaza, who while in custody led to the recovery of blood stained hatchet from his house which was put into sealed parcel. After completing other steps of investigation, challan was presented in the Court.

3. In the trial Court, prosecution examined seven witnesses out of whom two namely, P.W.2 Muhammad Uris and P.W.3 Shafi Muhammad are eye witnesses. P.W.5 Sawan is Mashir. P.W.6 Dr. Khaliq‑uz‑Zaman examined Pathan in the hospital when he was brought there in injured condition and also subsequently performed post‑mortem examination after his death. Other witnesses examined are formal in nature. Prosecution produced report of Chemical Examiner Exh. 27, in which there is positive finding that earth and hatchet were found to be stained with human blood. Motive cited by the prosecution is that one month before the incident there was quarrel between Ghulam Murtaza and deceased on rotation of water.

4. Trial Court believed a%7dence of two eye‑witnesses corroborated by complainant, recovery of blood‑stained hatchet and motive. Trial Court considered pleas taken by Ghulam Murtaza in his 342, Cr.P.C. statement but did not believe them. Ghulam Murtaza did not examine any witness in defence. He was unable to substantiate his plea of alibi also. After evaluation of evidence brought on the record, trial Court convicted respondent No.1 Ghulam Murtaza and awarded him capital punishment of death.

5. By impugned judgment, High Court has allowed criminal appeal and rejected reference for confirmation of death sentence and in consequence set aside conviction and sentence of respondent No.1 Ghulam Murtaza. Complainant Sojhro Khan filed petition for leave to appeal against the judgment of acquittal by the High Court. Leave has been granted to re appraise the evidence on the grounds, inter alia, whether conviction was sustainable even on the basis of ocular testimony of one witness as permitted under Article 17(2) of Qanun‑e‑Shahadat,1984, which does not provide a limit on the number of witnesses and whether conviction is sustainable even if eye witnesses are related and labelled as interested on that ground unless it is established that each such eye‑witness is inimical to the accused.

6. We are unable to agree with or approve the manner in which evidence brought on the record has been analysed and evaluated by the High Court. Prosecution has produced ocular evidence of two eye‑witnesses namely P.W.2 Muhammad Uris and P.W.3 Shari Muhammad. Uris is son of complainant and Shari Muhammad also claimed that he is related to complainant. Complainant stated in F.I.R. that Pathan deceased was his nephew. Uris at the time of incident was 13 years old and in that sense it can be said that he was minor at that time. High Court in the impugned judgment has held that evidence of two eye‑witnesses produced by prosecution is not satisfactory and does not inspire confidence for reasons stated as follows.

7. Firstly relations between the parties were strained due to altercation between deceased and Ghulam Murtaza over rotation of water and in the light of that enmity the evidence is to be appraised. Both eye‑witnesses are related to the deceased and complainant and since Uris was minor, prosecution failed to produce any independent witness from 40 or 50 persons who had collected at the spot including two. bearers Muhammad Ibrahim and Allahdino as admitted by the complainant. Now so far quarrel one month before the incident between deceased and Ghulam Murtaza over turn of water is concerned it is so mentioned in F.1.R. and it is open to the Court to come to the conclusion whether there was enmity between the parties on this ground or on any other ground which is to be substantiated by the witnesses in their evidence or by production of any other material of documentary nature which should be enough to convince the Court about the existence of enmity if so alleged. Evidence of Uris cannot be ruled out of consideration on the ground that he was minor nor can it be said that because he was minor at the time of incident he cannot be considered as equal to one witness. Evidence of this witness Uris is available on the record and is open to be subjected to the scrutiny. His deposition shows that he has been subjected to very lengthy and rigorous cross‑examination. His examination‑in‑chief is covered in half page while his cross‑examination is covered by three and half pages. Cross examination should show whether he has spoken the truth or not and whether he has seen the incident or not. Likewise, another eye‑witness P.W.3 Shafi Muhammad has been cross‑examined. extensively and his cross‑examination runs into two and half pages. Evidence of these eye‑witnesses is further supported by evidence of complainant Sojhro Khan, who was informed by his son Uris and he went to the spot and saw Pathan lying injured and unconscious. He verified the facts, had injured taken to hospital and then went to the police station and filed F.I.R. without any ostensible delay. Names of the eye‑witnesses and respondent/accused are mentioned in F.I.R. Cross examination of complainant Sojhro Khan also runs into three and half pages. Cross‑examination is allowed under the law to test the credibility of the witness. Eye‑witnesses or for that matter any other witness are to be believed or not subject to what they have said or admitted in the cross‑examination. We have noticed that evidence of witnesses including eye‑witnesses is not discussed in the impugned judgment in the light of what they have stated or not in their depositions.

8. Secondly, whether witness is interested or not and on that account is to be believed or not is to be decided in each case keeping in view peculiar facts and features of that case. Mere relationship per se with deceased or complainant does not show that he should be disbelieved on the ground that he is interested unless it is shown that he is also inimical to the accused and/or has motive or special reason to falsely implicate him.

9. Thirdly, it is mentioned in the impugned judgment that for a case of murder in which death sentence can be imposed by way of Qisas, as required under Our'an and Sunnan, evidence of two adult male witnesses of unquestioned integrity is to be produced and in support reference is made to verses from Holy Our'an. Article 17 of Oanun‑e‑Shahadat, 1984 envisages this requirement as essential in a case of murder liable to Hadd and not liable to Ta'azir. Instant case was tried under the ordinary law.

10. Fourthly, evidence of recovery of hatchet with positive report of Chemical Examiner cannot be brushed aside and ruled out of consideration on the ground that Mashir Sawan is related to the deceased and is common Mashir used by police during investigation at all stages. In the instant case there were two stages only, one when blood was recovered at the spot and second time when hatchet was recovered. Evidence of Mashir Sawan is not discussed with reference to his cross‑examination and in view of case‑law on the subject, permitting examination of co‑Mashir or investigating officer in the alternative.

11. Fifthly, too much emphasis has been put on the availability or not of benches in the hotel and finding of blood thereupon as the prosecution case is that at the time of incident Pathan was sitting on the bench when he was given hatchet blow on the head. Eye‑witnesses have not stated that after receipt of blow on the head Pathan remained sitting on the bench but on the contrary the assertion is that after receipt of blow Pathan fell down injured. If in Mashirnama of Vardat there is no mention of benches, then on this ground the relevant evidence is not to be rejected out of hand but is to be considered in the light of other concomitant circumstances including the requirement that normally those things are to be noted in the Mashirnama of Wardat which have incriminating value.

12. Sixthly, Investigating Officer has explained as to why he went to the Wardat on the following day for the reason that initially F.I.R. was registered under section 307, P.P.C. as Pathan was alive and was removed to. hospital where he died on the following morning. After being informed about the death, Investigating Officer first went to the hospital and then came to the Wardat.

13. For reasons aforementioned, we are of the view that evidence brought on the record has not been properly appreciated in the High Court in the manner required by the principles laid down for administration of criminal justice. We, therefore, set aside the impugned judgment and remand the case to the High Court for fresh hearing according to law. Since we are dealing with acquittal appeal and we find that it is a fit case for interference therefore, we have given reasons in detail. We would like to point out that lapses mentioned above are not intended to influence the mind of the High Court one way or the other in the act of evaluation of evidence in the light of law laid down and it is expected that the matter would be decided strictly according to law and merits. Respondent Ghulam Murtaza would remain on the same bail as has been already granted by this Court. Since incident took place in the year 1983, it would be appreciated if appeal is decided by the High Court within shortest possible time. In the result appeal is allowed in terms stated above. M.BA./S‑702/S Case remanded.