1987 PLP 909 (SCMR)

M. Nawaz Abbasi, Assistant Advocate‑General Punjab with Rao Muhammad Yousaf, Advocate‑on‑Record for the State. Dates of hearing: 19th, 20th and 21st January, 1987. ALI HUSSAIN QAZILBASH, J.‑‑This appeal has arisen from the judgment of the Lahore High Court, dated 18‑9‑1978, whereby the conviction and sentence of Muhammad Siddique was maintained

2. The brief facts are that on 30‑11‑1972 at 7‑30 a.m. Jalal complainant alongwith his son Meharban and his son‑in‑law Muhammad Ghafoor P.W. were engaged in making preparation for sowing wheat in their fields situate at a place called Hillan within the area of Kahuta Police Station, District Rawalpindi, when they were surprised by Muhammad Siddique who was armed with a pistol, his brother Muhammad Rashid armed with a gun and their brother‑in‑law Muhammad Saleem having a hatchet from behind the bushes raising Lalkaras and simultaneously Muhammad Rashid and Muhammad Siddique fired shots at Jalal and his son, as a result of which the shot fired by Muhammad Siddique landed on the head of his son and the shot fired by Muhammad Rashid proved abortive. Naib‑Subedar Talib Hussain who was present raised hue and, cry, as a result of which the accused party made their escape good. The deceased was taken to the hospital where he succumbed to his injuries. The occurrence was also witnessed by Subedar Talib Hussain. The motive for the occurrence was that the accused party was trying to get forcible possession of Khola from Jalal complainant and as such the parties were locked in civil and criminal litigations. It was also alleged in the F.I.R. that some days back, 40 rafters belonging to the complainant were set on fire and the matter was reported against the accused party, over which they were annoyed.

3. This report was recorded by Altaf Hussain, S.H.O. (P.W.11), who then rushed to the Civil Hospital, Kahuta, examined the dead body of Meharban, prepared its inquest report and injury statement and sent the dead body for post‑mortem examination. The witness then started searching the accused who were not traceable. He recorded the statements of some of the witnesses, reached the place of occurrence wherefrom he took the blood‑stained earth in the presence of witnesses He arrested Muhammad Saleem accused on 4‑12‑1972, Muhammad Siddique accused on 11‑12‑1972, whereas Muhammad Rashid accused was arrested on 7‑12‑1979 (by Rustam Khan P.W.1) and pistol Exh.P.5 was recovered from him. On the day of his arrest Muhammad Siddique produced gun Exh.P.5 which was taken into possession by Altaf Hussain P.W. This P. W. also collected the clothes of the deceased and a phial containing a lead which was sent by the doctor. After the completion of the investigation, complete challan was put in Court.

4. At the trial as many as eleven witnesses appeared for the prosecution. All the accused in their statements under section 342, Cr.P.C. denied the charge. Muhammad Rashid, however, admitted the ownership and recovery of pistol EXh.P.1 and gun Exh.P.5 as both were licensed in his name. After the conclusion of the trial, the learned trial Court held both Muhammad Rashid and Muhammad Siddique guilty of the offence under section 302/34, P.P.C. and vide its judgment, dated 26‑5‑1975, sentenced each of them to imprisonment for life and a fine of Rs.500 or in default to six month's R.I. Each of them was additionally fined Rs.1,000 which was ordered to be paid as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. Muhammad Seleem was, however, acquitted. Both the convicts then approached the High Court by way of an appeal, where Muhammad Rashid succeeded in obtaining a favourable order and was acquitted but his brother Muhammad Siddique's conviction and sentence was E` maintained through the impugned judgment.

5. Leave in this case was granted by this Court to consider whether the occurrence was witnessed by the P.Ws. or not. We have heard the learned counsel for the parties in detail and have gone through the impugned judgment. The learned Single Judge while dealing with the presence of witnesses and their version of the occurrence observed:' "The explanation given by Jalal for his presence at the spot is quite natural. None else except his own kith and kin could give him a helping hand in ploughing and sowing. Therefore, I am convinced that Jalal and his son‑in‑law were present at the spot when the alleged occurrence took place. I am not inclined to reject the testimony of these two witnesses merely on the ground of their relationship with the deceased and the past litigation between the parties, because their evidence inspires confidence. Corroboration is necessary as a rule of prudence, but if the evidence is of the type which inspires confidence then the Court may not look for corroborative evidence. Nevertheless in this case corroborative evidence is available in the form of medical evidence. The doctor who performed the post‑mortem deposed that the injury had been caused by a bullet. I, therefore, do not agree with the learned counsel for the appellants that the medical evidence did not corroborate the ocular version nor do I agree with him that it was a case of "hit and run" and nobody saw the occurrence."

6. We have carefully examined the above observation of the learned Single Judge in the light of the arguments advanced by the learned counsel for the appellant. His submissions that it was an unwitnessed occurrence; that the eye‑version account furnished by the highly interested witnesses has not been corroborated by other independent evidence and that since the evidence of Jalal and his son‑in‑law Subedar Muhammad Ghafoor P.Ws. has not been accepted qua the acquitted accused it should not have been accepted against the appellant, would not prevail. Admittedly it is a daylight occurrence which has been enacted in the fields outside the village where the complainant party had gone for Zamindara work and as the common practice is that more than one person do go to the fields for ploughing purposes, so naturally on the fateful day Jalal P.W. did go alongwith his son Meharban deceased and son‑in‑law Muhammad Ghafoor and it was there that in their presence the occurrence took place. Nothing has been brought by the defence to create doubt about the presence of these witnesses at the relevant time. Instead the witnesses had reasonably explained their presence at the spot. True that the witnesses are interested but then their version of the occurrence is consistent inasmuch as both of them deposed at the trial that the appellant fired at the deceased with his pistol which proved fatal and the fact that the deceased was hit by a bullet is fully supported by the medical evidence, therefore, it will be wrong to say that the ocular evidence has not been supported by other evidence. It is correct that the evidence of Jalal and his son‑in‑law has not been accepted against the acquitted accused but then it was for valid reason because the role attributed to the acquitted accused has not been' corroborated by other evidence, whereas the case of the appellant stands on a different footing because against him the eye‑version account: is supported by the medical evidence.

7. In view of the above we find no merit in this appeal and dismiss the same. The appellant is given the benefit of section 382‑B, Cr.P.C. M.I/M‑76/S Appeal dismissed.