P L D 2004 Supreme Court 663 (PLP)

4. As far as respondents are concerned they were convicted/sentenced as follows:‑‑ 1 Muhammad Afzaal U/s 302/34, P. P. C. Sentenced to death with fine of Rs.25,000 or in default whereof to undergo R.I. for one year, with direction to pay Rs.50,000 as compensation to the legal heirs of deceased. 2 Khizar Hayat U/s 302/34, P.P.C. Sentenced to death with fine of Rs.25,000 or in default whereof to undergo R.I. for one year, with direction to pay Rs.50,000 as compensation to the legal heirs of deceased 3 Yahya Bakhtiar U/s 302/34, P.P.C. Sentenced to imprisonment for life with fine of Rs.25,000 or in default whereof to undergo R.I. for one year, with direction to pay Rs.50,000 as compensation to the legal heirs of deceased.

5. Against the above judgment respondents preferred appeal before the High Court which has been accepted vide impugned judgment as such instant appeal by leave of the Court has been filed.

6. It is to be noted that despite of issuing process time and again for enforcing the attendance of respondents, they could not be arrested, except Yahya Bakhtiar who has been ordered to be kept in custody by means of order dated 12th January 2004. As far as respondents Muhammad Afzaal and Khizar Hayat are concerned there is no likelihood of their arrest in near future as per the reports which have been submitted by the process serving agencies, therefore, instead of delaying the disposal of instant appeal particularly in view of the fact that respondent Yahya Bakhtiar is in custody, we have decided to proceed with the case to his extent. The file will be kept in dormant against rest of the respondents i.e, Muhammad Afzaal and Khizar Hayat and their perpetual warrants of arrest shall be issued.

7. Learned counsel appearing for appellant contended that acquittal of respondents in presence of the ocular statement of PWs‑7 and 8 i.e. Dildar Hussain and Muhammad Azam is unwarranted and uncalled for as according to him they had fully implicated all the respondents in the commission of the offence. He further stated that both the witnesses have furnished independent corroboration to the statement of each other. Besides it as far as PW‑Muhammad Azam is concerned he is an independent person and has no motive to falsely involve the respondents in the commission of the offence, therefore, the learned High Court ought not to have acquitted them of the charge.

8. Mr. Muhammad Zaman Bhatti, learned counsel appearing on behalf of the State supported the contentions raised by the appellant's counsel.

9. Learned counsel appearing for respondent No.3, however, vehemently contended that the statements of P.Ws. Dildar Hussain and Muhammad Azam, eye‑witnesses, have not been believed to the extent of Dilawar Hussain and Raham Dad accused who have been acquitted of the charge, therefore, their statements cannot be believed against the respondents. According to him there is deep rooted enmity between the respondents and the deceased party as such the evidence of P. Ws. Dildar Hussain and Muhammad Azam who were interested in the prosecution of the case and as they have got ulterior motive against the accused/respondents, therefore, they have rightly been disbelieved by the High Court against all the respondents. It is also contended by him that if at all the Court following the principle enshrined in the maxim "falsus in uno falsus in omnibus" intends to believe their evidence then there must be some independent corroboration which according to him is lacking in the instant case.

10. We have heard parties counsel and have also gone through the impugned judgment as well as the available record carefully with the help of learned counsel for the parties. It is to be noted that as far as Dilawar Hussain and Raham Dad are concerned they were acquitted by the trial Court and no appeal was filed challenging the said order to that extent, therefore, question for consideration would be "when the statements of P.Ws.‑Dildar Hussain and Muhammad Azam against two acquitted accused persons are disbelieved, whether their evidence can be accepted against the remaining accused persons?" It may be noted that as far as accused Dilwar Hussain and Raham Dad are concerned learned trial Court had not acquitted them of the charge disbelieving the statements of P. Ws. Dildar Hussain and Muhammad Azam but for extraneous reasons noted, supra. Now in view of such situation it can safely be held that the statements of P. Ws. Dildar Hussain and Muhammad Azam had not been disbelieved or discarded qua Dilawar Hussain and Raham Dad accused. Undoubtedly there is a deep rooted enmity between the parties as it has come on record, therefore, the statements of P.Ws. Dildar Hussain and Muhammad Azam could be accepted after close scrutiny and getting them confirmed through strong corroborative evidence available on record on material points. It is true that P.W. Dildar Hussain is real brother of Akhtar Mahmood and against him it is alleged that he was not present at the place of incident otherwise the accused persons who had no sympathy with him would have also caused his death as well rather than enabling him to furnish ocular testimony against them. It is an admitted fact that no empty has been recovered from the place of incident nor there is any evidence sufficient to furnish corroboration to the statements of both the P.Ws‑ i.e. Dildar Hussain and Muhammad Azam. As far as motive to commit a crime is concerned, it has not been attributed to Yahya Bakhtiar for the commission of the murder of Akhtar Mahmood, As far as the medical evidence is concerned, it is always treated to be in the nature of A confirmatory and it does not identify the accused involved in the commission of offence, in view of the law laid down by this Court in the case of The State v. Muhammad Sharif and three others (1995 SCMR 635), wherein it has been held that medical evidence is normally used for confirmation of ocular testimony but only to the extent of nature and number of injures but not co‑accused. This principle has been reiterated in the cases of Mahmood Ahmed v. The State (1995 SCMR 127) and Muhammad Sharif v. The State (1997 SCMR 866).

11. Thus for sake of safe administration of justice, if the statement of P.W. Dildar Hussain is kept out of consideration qua respondent Yahya Bakhtiar then the prosecution is left only with the evidence of PW‑Muhammad Azam. Learned counsel appearing for respondent No.3 contended that as far as this witness is concerned, he is also related to the complainant party as it has been admitted by P.W. Dildar Hussain in his cross‑examination. We inquired from him as to whether such question was put to him his answer was in negative. It may be noted that firstly mere relationship with the complainant party is not sufficient to discard evidence unless it is proved that he has ulterior motive to involve the respondent No.3 in the commission of the offence; and secondly when Muhammad Azam was examined as an eye‑witness, during cross examination, no such question was put to him with regard to his relationship with the complainant party neither it has been proved on record that on account of such relationship, he has deposed with ulterior motive against the accused persons. Careful close scrutiny of the evidence produced by PW‑Muhammad Azam, persuades us to hold that he has fully supported the prosecution case qua accused Yahya Bakhtiar. The deposition furnished by him in examination‑in‑chief has not been shaken in the cross‑examination as well, therefore, we are inclined to hold that in view of the facts and circumstances of the case solitary deposition of PW‑Muhammad Azam had furnished trustworthy incriminating evidence against Yahya Bakhtiar (respondent No.3). Thus following the principle that in criminal cases it is the quality and not the quantity of the evidence, which settles the guilt or innocence of accused, we accept his evidence. In this behalf we are fortified by the judgment reported as Allah Bakhsh v. Shammi (PLD 1980 SC 225), wherein it has been held that conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. Therefore, the evidence furnished by PW‑Muhammad Azam can safely be relied upon for the purpose of recording conviction against respondent Yahya Bakhtiar.

12. It is to be noted that learned High Court had not taken into consideration the statement of P.W.‑Muhammad Azam from this angle, therefore, acquittal order warrants interference by this Court, as an important piece of evidence was ignored by the learned High Court. In forming this opinion we are fortified, by the judgment in the case of Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11).

13. Thus for the foregoing reasons, appeal is allowed against respondent No.3 i.e. Yahaya Bakhtiar, as a result whereof impugned judgment to his extent is set aside and the judgment of the trial Court dated 22nd September 1992 is restored and he is directed to undergo F imprisonment for life with fine of Rs.25,000 or in default whereof to undergo R.I. for one year, with direction to pay Rs.50,000 as compensation to the legal heirs of deceased. Benefit of section 328‑B is also extended to him.

14. As far as respondents 1 and 2 are concerned, their perpetual non‑bailable warrants, executable by the Sessions Judge Gujrat, be issued and till their arrest, file be kept in dormant. N.H.Q/D‑7/S Appeal accepted.