1992 PLP 1258 (SCMR)

9. Against the above judgment, the appellant filed aforesaid criminal appeal, which was dismissed by the learned Judge in Chamber. After that, the, above jail petition was received by this Court from the Jailer, which was granted to consider the above question.

10. The appellant has been represented by Mr. Nasim Saeed Shaikh, learned Advocate Supreme Court, whereas none appeared on behalf of the State.

11. In support of the above appeal, Mr. Nasim Saeed Shaikh has urged as under: (i) That the ocular testimony of the three eye‑witnesses is unreliable. (ii) That the appellant could not have any motive to cause death of the deceased but the motive, if any, could have been on the part of the complainant party to cause harm to the appellant. (iii) That the version of the prosecution is highly improbable, keeping in view the factum that right leg of the appellant was amputated from the knee and he had artificial wooden leg. In support of his above first submission, he has taken us through the evidence of the above three eye‑witnesses and we find that there are a number of discrepancies as to coming to the well by the above witnesses. The complainant has made following contradictory statements about P.W.9 Abbas Khan's coming to the place of Wardat: (i) In his examination‑in‑chief, he has stated that he, his daughter Hashmat Jan, his son the deceased and his son‑in‑law, P.W.9 Abbas Khan had gone to the well towards west with animals for drinking water. (ii) In his cross‑examination, he stated: (a) That Abbas Khan had come to his house and asked him to bring cattle and told him that he was going to the well with the goats. (b) That he had sent his son to the house of Abbas Khan asking him to take goats to the well and that he would also bring his cattle.

11. There is also contradiction on the factum whether P.W.11 Mst. Hashmat Jan was living with the complainant in his house at the relevant time or she was living in her husband's house. According to P.W.R, the complainant Mian Khan, she was living with him and she went to the well with him, whereas, according to P.W.11 Mst. Hashmat Jan; she was living 'with her husband and had come to the well from there. Besides the above contradiction, of there are other contradictions which need not be referred to.

12. Even if we were to ignore the above contradictions, the fact remains that according to the complainant's own version, they were not on good terms with the appellant inasmuch as P.W.8 Mian Khan the complainant has deposed that he had severed his connections from the appellant after he abducted his daughter 12‑14 years prior to the incident and in spite of his approaches, the complainant did not forgive him. Keeping in view the above factum, prudence demands that there should be some independent corroborative piece of evidence.

13. This leads us to the question of motive, which has been relied upon by the two Courts below, namely, that the appellant abducted Mst. Rukhmat Jan 12‑14 years prior to the incident and married to her without the consent of the complainant, he was ex‑communicated by the family of the complainant. The appellant made efforts all along for compromise with the complainant but he was spurned by the complainant and the deceased and because of that the appellant had nourished a grudge against the deceased. In our view, the above motive was not well‑founded as the complainant party would have motive against the appellant to implicate him falsely and not the appellant, who was already married 12‑14 years prior to the incident and had five children from the above wedlock. We are, therefore, of the view that the motive alleged by the prosecution, does not furnish the required corroboration.

14. The two Courts below have also relied upon the medical evidence as a corroborative evidence. In our view, the medical evidence may furnish corroboration on the question as to the nature of weapon used in the commission of the offence but it cannot provide corroboration, as to the identity of the person who committed the offence. The alleged recovery of Chhuri from the appellant's house has been discarded by the trial Court itself as the Chhuri was not bloodstained and nobody from the eye‑witnesses stated that the aforesaid Chhuri was used.

15. The Courts below have also relied upon the fact of abscondence of the appellant from the village. The appellant has given an explanation for his absence from the village. Even if we were to ignore the above explanation, the above act of abscondence on the part of the appellant will not be sufficient corroboration if we were to hold that it is doubtful that the eye‑witnesses were present at the place of incident.

16. Thus; there is no reliable corroborative piece of evidence on record. On the contrary, the prosecution version is highly improbable inter alia for the following reasons: (i) That it is an admitted position that the appellant's right leg from the knee was amputated and he was using an artificial wooden leg. The distance between the points where the alleged witnesses were standing and the place of Wardat was 52 karams i.e. less than 100 years. It is highly improbable that the appellant could have escaped from the place of incident after inflicting the fatal injury. (ii) That the appellant could not have visualised that the complainant's bullock would stray towards the bushes of `marvan', where he was allegedly hidden. (iii) Nothing has been brought on record to indicate that Peshiwela time was the normal time of the complainant for taking cattle to the well for the purpose of drinking water. (iv) That it has come on record, that there was other well/water source available nearer to the house of the complainant as compared to the well. Nothing has been brought on record to indicate as to the reason which prompted the complainant to take his cattle to the well. (v) It has also come on record that the village where the incident took place had a number of houses but no independent person has been examined.

17. We may observe that simpliciter relationship between a victim of an offence and witnesses does not render such witnesses disqualified or make them interested witnesses as to require corroboration. But, if such witnesses have some motive to implicate the accused person falsely, they are termed as interested witnesses and, their testimony in the absence of reliable corroborative piece of evidence, cannot sustain a conviction.

18. We may also observe that it has come on record that there was some litigation between the complainant and his brother Gulab Khan. It has also come on record that there was fight between the deceased and his brother Amanat Khan on the one hand and their maternal‑uncle Abdullah Khan and others, on the other hand in which both these sides suffered injuries. Though it is alleged that the above matter was patched up, but nothing has been brought on record to substantiate it. In this view of the matter, the possibility that some one else might have murdered the deceased, cannot be ruled out.

19. We are inclined to hold that the presence of‑the eye‑witnesses at the place of incident is not free from doubt and their testimony cannot be relied 'upon in ‑the absence of reliable corroborative .piece of evidence, not only because of the above reason but also because of the fact that they were not on good terms with the appellant according to their own statement. The two Courts below have acted contrary to the well‑settled principles of jurisprudence applicable to criminal proceedings.

20. We would, therefore, allow the above appeal, set aside the judgment of the Courts below and the conviction and sentences. The appellant shall be released forthwith, unless he is required in some other case. M.BA./G‑358/S Appeal allowed.