P L D 1965 Supreme Court 111 (PLP)

FAZLE‑AKBAR, J.‑This appeal by special leave calls in question the correctness of the judgment and order of a Division Bench of the High Court of West Pakistan at Lahore, acquitting the first six respondents who had been convicted and sentenced by the Additional Sessions Judge, Gujrat in a case of rioting with murder. The incident took place at about Bhattewala, that is, at about 11 a.m. on 23rd June 1960, in the Main Bazar of village Kuthala Sheikhan in the district of Gujrat. The prosecution case briefly was that on account of pre existing enmity, the details of which are immaterial, the 6 accused namely, Bahaduri, Sultan, Manzoor, Bati, Mutalli and Lala came out of a lane and attacked Maulo who alongwith Roshan Ali was then passing through the said Bazar. Sultan opened the attack by giving a sota blow on the head of Maulo and then Mutalli gave a sota blow on his right arm and he fell down on the ground. Thereupon Bahadri struck on his right leg with a balam and Manzoor, Bati and Lala gave more blows with sotas and then they hurriedly left the place. The injured who was lying unconscious was removed to the local dispensary and while the compounder was giving him first aid his companion Roshan Ali went to the house of the injured and informed his brother Sohni about the incident. Sohni immediately went to the Police Station which was in the same village and lodged first information report at 11‑30 a.m. The Sub‑Inspector of Police then went to the dispensary and after preparing the injury sheet, sent the injured to Civil Hospital, Phalia where he succumbed to his injuries on the next day. Eventually the 6 accused persons were committed to the Court of Session to stand their trial. The accused pleaded not guilty. Their defence was a plea of false implication out of enmity. The prosecution case rested on the evidence of three eye witnesses, namely, Roshan Ali (P. W. 10), Sardara (P. W. 11) and Ahmad Bakhsh (P. W. 12). The Sessions Judge accepted their evidence and convicted the accused under section 302/149, P. P. C. and sentenced each of them to transportation for life. They were also convicted under section 148, P. P. C. and sentenced to rigorous imprisonment for one year each. On appeal, the learned Judges of the High Court found that "the eye‑witnesses were closely related to the deceased" and that, as no corroborative evidence was available they thought it unsafe to maintain the conviction of the accused on the evidence of interested witnesses alone. They, therefore, acquitted all of them. As the reasons given by the trial Judge in support of the conviction were not even noticed or discussed by the High Court, special leave to appeal was granted in order to examine the evidence in this case. Mr. Majid Asghar, the learned counsel for the appellant has contended that the finding of the learned Judges that Sardara (P. W. 11) and Ahmad Bakhsh (P. W. 12) are the cousins of the deceased is not based on any evidence. It may be so, but the Sessions Judge when considering their evidence observed: "It is also true that Sardara P. W. 11 was bound down along with the deceased, in security proceedings against the accused party, and that Sardara (P. W. 11) and Khan Muhammad, father of Ahmad Bakhsh (P. W. 12) were in fact witnesses against Natu, brother of Mutalli and Bati accused, when he was prosecuted under section 307 for the murderous assault committed on the person of Maulo deceased some time before the present occurrence." He then goes on to say that: "Even if enmity is proved, it cuts both way. Although an enemy can be falsely implicated nevertheless, at the same time, an enemy is prone to commit an offence against an enemy. The enmity of a witness with the accused, does not necessarily show that he has given false evidence although it may explain why he has given evidence at all. I will show in its proper place, that the evidence of the eye‑witnesses under reference, has not only its intrinsic value but its truthfulness is confirmed by the circumstantial evidence and other probabilities of the case. In view of this finding, the evidence of the eye witnesses cannot be put aside on the ground that they are relation‑cum‑hostile witnesses." He after referring to the first information report which was lodged promptly giving details of the occurrence as furnished to the informant Sohni by the eye‑witness Roshan Ali relied on the following circumstances as corroborating the testimony of the eye‑witnesses: (i) "In these circumstances F. I. R. in the present case serves as a telling piece of corroborative evidence of the testimony of the eye‑witnesses; (ii) that the testimony of Roshan (P. W. 10) and the account of incident in the F. I. R. is amply borne out by the evidence of other two eye‑witnesses Sardara (P. W. 11) and Ahmad Bakhsh (P. W. 12); and (iii) the seat of the various injuries and the nature of the weapons and the nature of those injuries as given in the F. I. R. (Exh. A) and described by the eye‑witnesses are exactly in line with the testimony of Dr. Muhammad Yamin who has stated that the injuries caused to the deceased could be caused by sotas and ballams." Thus he really treated the first information report as furnishing the required corroboration of the evidence of `relation‑cum‑hostile witnesses'. The learned counsel for the State was therefore, frank enough to concede before the High Court `that no corroborative evidence is available on the record.' Mr: Majid Asghar, the learned counsel for the appellant has also not attempted to support the judgment of the Sessions Judge on this point. It will suffice to say that the first information report is never substantive evidence in any case and in any event the initial report) was by Sohni who was not a witness to the occurrence. Now an interested witness is undoubtedly a competent witness under the Evidence Act. The proposition that his testimony should be corroborated by independent evidence is however not of universal application. The question of his reliability must depend upon the circumstances of each case and the quality of his evidence. If his testimony is found reliable the Court may accept it even without any corroboration. But as a matter of prudence the Court insists on corroboration of his evidence when he is inimically disposed towards the accused and it will, therefore, be unsafe to base a conviction on his testimony alone. In this case the village where the occurrence took place was torn by faction and therefore, false implication of innocent persons cannot be altogether ruled out. Furthermore, according to Doctor Muhammad Yamin Khan out of the 9 injuries found one Maulo deceased 2 were contused wounds, 1 incised wound, 1 was abrasion and the rest were contusions. Death was due to the shock and compression of brain caused by blood clots due to fracture of skull which was caused by injuries Nos. 1 and 2 that were found on the deceased. Most of the remaining injuries were on the leg of the deceased. In view of the number and nature of injuries one may legitimately ask whether this could possibly have been the result of assault by 6 accused persons or that they could have been easily caused by two or three persons. Viewing all the circumstances we are satisfied that the High Court was right in insisting on some corroboration of the evidence of the eye‑witnesses connecting the accused with the crime. As such corroboration was lacking, the High Court was justified in giving the benefit of doubt to the accused persons. This appeal is accordingly dismissed. A. H. Appeal dismissed. P L D 1965 Supreme Court 114