2001 PLP 199 (SCMR)

Ch. Arshad Ali, Advocate. Supreme Court for the State. . Date of hearing: 29th May, 2000. JADED IQBAL, J.‑‑‑This is an appeal sent through Superintendent, Central Jail, Faisalabad, by one Muhammad Mansha whereby the judgment, dated 7‑9‑1998 passed by a Division Bench of Lahore High Court, Lahore has been assailed whereby conviction under section 302, PT .C. and sentence of death awarded by learned Sessions Judge, Samundari (Faisalabad) vide judgment, dated 15‑12‑1992 on three counts with direction to pay compensation of Rs.20,000 to the legal heirs of deceased Suleman or in default to undergo six months' S.I. Rs.40,000 to be paid to the legal heirs of deceased Sarfraz and in case of default to undergo S.I. for six months and Rs.20,000 to be paid to the legal heirs of Mst. Saban as compensation and in case of default to undergo six months' S.I. He was also convicted under section 324, P.P.C. for launching murderous assault upon Mst. Razia Bibi and sentenced to undergo seven years' R.I., Rs.10,000 to be paid as compensation to Mst. Razia and in case of default to suffer six months' S.I., was upheld. .

2. Briefly stated the facts of the case are that F.I.R. was got lodged by one Ahmad on 28‑12‑1991 who is real father of the appellant with Police Station Tandlianwala alleging therein that his son Muhammad Suleman (deceased) sold cotton crop his other son Muhammad Mansha (appellant) demanded the sale consideration and resultantly an altercation ensued. Muhammad Suleman felt annoyance and left the house and went to the house of his uncle namely, Sarfraz alias Dhaular. It is further alleged that in spite of migration of Suleman the appellant continued extending threats and on 28‑I2‑1991 at 11‑00 a.m. when the complainant was sitting in the company of Jahangir and Noor Hassain they heard gunshot reports from the house of Sarfraz and in pursuant whereof they all reached his house and found Muhammad Mansha (appellant) duly armed with .12 bore double‑barrel gun and Muhammad Suleman was lying in pool of blood and when Sarfraz attempted to intervene. Muhammad Mansha (appellant) also fired upon him which hit Sarfraz on his chest near the throat and he fell down. Mst: Saban wife of Pahlwan also attempted to intervene and appellant fired upon her hitting her chest. She also fell down. The appellant also fired upon Mst. Razia who attempted to save her husband (Sarfraz) and mother (Mst. Saban) and sustained pellet injuries on her chest. The complainant and others did not try to intervene on account of fear. The appellant managed his escape good and as a result of firing Sarfraz, Muhammad Suleman and Mst. Saban succumbed to the injuries and Mst. Razia Bibi sustained injuries. A case nder sections 302 and 324, P.P.C. was got registered and after completion of necessary formalities accused was sent up for trial and convicted as per details mentioned hereinabove.

3. Malik Muhammad Jehanzeb Tamman, Advocate Supreme Court appeared on behalf of appellant and contended that conviction could not have been awarded on the basis of solitary statement of Mst. Razia being an interested witness. It is urged with vehemence that the case has not been supported by material prosecution witnesses hence the question of conviction does not arise which has been awarded by the learned trial Court without appreciating the evidence which has come on record in its true perspective. It is also contended that the learned Division Bench has failed to consider that all the material witnesses were turned hostile and the statement of Mst. Razia being interested, partial and inimical towards appellant should have been discarded which aspect of the matter went unnoticed and resulted in serious miscarriage of justice.

4. Ch. Arshad Ali, Advocate Supreme Court appeared on behalf of. State and supported the impugned judgment in view of sufficient incriminating evidence which has come on record and according to him the prosecution has established the accusation beyond shadow of doubt.

5. We have carefully examined the respective contention as agitated on behalf of appellant and for State in the light of relevant provisions of law and record of the case. The impugned judgment has been perused with care and caution. The entire evidence has been thrashed out with the eminent assistance of Malik Muhammad Jehanzeb, Advocate Supreme Court and Ch. Arshad Ali, Advocate Supreme Court which reveals that except Mst. Razia (P.W.1) all the material witnesses were got declared hostile. The complainant namely Ahmad (P.W.2), Jahangir (P.W.4), Noor Hussain (P. W .5), Muhammad Yousuf (P. W .11) and Muhammad Hussain (P. W .12) have not supported the prosecution version for certain obvious reasons. It is to be noted that Ahmad (P.W.2) is real father of deceased Muhammad Suleman and Muhammad Mansha (appellant) and brother of deceased Sarfraz and certainly he did not want to lose his other son (appellant) and undoubtedlv F.I.R. was got lodged in heat of passion and with passage of time he must have given a second thought to save his family from complete destruction with the help and cooperation of Jahangir (P.W.4) and Noor Hussain (P.W.5) who all are related inter se and turned hostile. It is pertinent to mention here that "primary question is not whether a witness is hostile or disinterested but whether a witness is honest. A hostile witness may be truthful one, while a disinterested witness may be bribed or pressurised to make a false statement". The Court should look to the quality of evidence whether probable or consistent, (1979 SCMR 469). Here at this juncture the question arises as to whether on the basis of solitary statement of a witness conviction can be awarded or otherwise? Before the said question could be answered it seems appropriate to examine the statement of Mst. Razia (P.W.1) who has deposed in a simple and straightforward manner as follows:‑‑ "About 10‑1/2 months ago at about 11 a.m. Noor Hussain, Jahangir and Ahmad were sitting with the outer wall of our house. Suleman, Sarfraz, Saban and me were in our house. Meanwhile accused Mansha trespassed into our house being armed with double?barrel .12 bore gun. He asked Suleman to teach lesson for residing in the house of Sarfraz. Mansha fired at Suleman hitting on his right eye and Suleman fell down. Then Mansha exhorted to Sarfraz to teach him lesson for keeping Suleman in his house. Accused Munsha fired at Sarfraz hitting on his neck and chest who collapsed. Said Sarfraz alias Dhaular was my husband. Then accused Mansha fired at my mother Saban hitting on her chest and she collapsed. I went ahead to rescue my husband and mother then accused made two fire shots at me hitting me at my chest and right upper arm. P.Ws. Jahangir, Ahmad and Noor attracted to the spot. They witnessed the occurrence. I was in my senses at that time. But they did not make me complainant or witness in this case. Suleman; Sarfraz and Saban succumbed to the injuries at the spot and accused made good his escape but he was apprehended. Suleman deceased and accused Mansha had dispute over the sale consideration of cotton crop. Accused was demanding the consideration of cotton crop from Suleman but he was not paying him. That is motive behind the occurrence. "

6. A careful analysis of her deposition would reveal that she remained present at the spot, and also sustained bullet injuries at the hand of Muhammad Mansha (appellant). She was subjected to an exhaustive cross?-examination but nothing advantageously could be extracted and she stood firm to the test of cross‑examination. It is worth mentioning that the incident, place of occurrence and presence of Mst. Razia (P W.1) went unchallenged. The occurrence was admitted by suggesting that some unknown culprits have committed the murder but, however, the mode of commission of offence was controverted. She had given a detailed account of the incident by attributing the entire responsibility to appellant in respect of E fire‑armed injuries sustained by her and three other persons were killed. Her evidence is worthy of credence, duly supported by medical evidence, positive 'report of Forensic Science Laboratory (Exh.PAA), report of Serologist (Exh.PZ), the recovery of empty cartridges (Exh.P.11/1‑4) from the place of occurrence, recovery of gun (Exh.P.13) at the pointation of appellant and motive. In our considered opinion she is an independent, natural and trustworthy witness and there is no lawful justifiable cause to discard her testimony. The question as formulated hereinabove as to whether conviction could have been awarded on the basis of solitary statement of a witness has been examined at first instance in the light of Article 17 of the Qanun‑e?-Shahadat Order, 1984, (section 134 of. the Evidence Act, 1872). The said Article is reproduced hereinbelow for ready reference:‑‑ ?17.Competence and number of witnesses. ‑‑‑(I) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, (2) Unless otherwise provided in any law relating to the Enforcement of Hudood' or any other special law‑‑ (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one tray remind the other, if necessary, and evidence shall be led accordingly; and (b) in all other matters, the Court may, accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."

7. A bare perusal would reveal that the language as employed in the 'said Article 17(1)(b) is free from any ambiguity and no scholarly interpretation is required. The provisions as reproduced hereinabove of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact meaning thereby that a fact can be proved only by a single witness "it is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality witnesses, case where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though considerable number of witnesses may be forthcoming to testify to the truth of the case, for the prosecution. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a facts". (Principles and Digest of the Law of Evidence by M. Monir, page 1458).

8. As mentioned hereinabove no yardstick can be fixed as to whether statement of a solitary witness must or must not be relied upon for the simple reason that each case has its own peculiar circumstances which shall play a significant role and is motivating factor to determine the reliability of a solitary witness as the said aspect of the matter is to be dilated upon in the light of surrounding circumstances which may be taken into consideration or otherwise. We may mention here that such circumstances also cannot be confined within a limited sphere of any definition because the same may be infinitely diversified by the situation and conduct of the parties concerned. "The only general rule that can be laid down is that the circumstances must be such as would lead the guarded decision of a reasonable and just man to the conclusion". We have also have the benefit of consulting C.D. Field on the Law of Evidence (page 4746) wherein it was observed as follows:‑‑ "Thus evidence of a single witness is sufficient to sustain and may legally be made the sole basis for a conviction, the relevant section 134 having enshrined the well‑recognised maxim that 'evidence has to be weighed and not counted'. Though the Legislature has placed no jurisdictional limitation on the power of a Judge to act on the sole testimony of a single witness, even though uncorroborated, the Judges themselves have from time to time evolved some rules and guidelines of circumspection as to when such evidence can be or cannot be acted upon without corroboration." (Pema Dukpa v. State Sikkim, 1981 Cr. LJ 276). 9.???????? It may not be out of place to mention here that Law of Evidence (I of 1872) and Qanun‑e‑Shahadat Order, 1984, have excluded the well-?entrenched principle remained applicable for decades that "unus nullus" (one is equal to none) and is no, more enforced hence cannot be taken into consideration. The only criterion which can be fixed seems to be that "in order that the sole testimony of a witness is made the foundation and the basis for finding a person guilty of the charge, the evidence must be clear, cogent and consistent and should be of an unimpeachable character." (1982) 53 Cut. LT 368 at p.370).

10. The significance‑ of the statement of solitary witness has also been examined in numerous cases and a few important therefrom are mentioned as follows:‑‑ 1980 PCr.LJ 898, PLD 1980 SC 225, 1971 SCMR 659, 1969 SCMR 76, 1998 PCr.LJ 1441, 1971 SCMR 273, 1971 SCMR 530, 1995 SCMR 1979, PLD 1980 SC 225, PLJ 1980 SC 492, 1993 SCMR 2405, NLR 1985 Cr. 501, AIR 1936 Lah. 778, PLD 1957 SC (Ind.) 525, 1971 SCMR 273 and 1972 SCMR

620. A careful examination of the dictums as laid down in the above?referred authorities the consensus seems to be that conviction can be awarded on the basis of solitary statement of a witness if it is found worthy of credence, dependable and consistent.

11. We have also dilated upon the objection as agitated by the learned counsel on behalf of the appellant that being interested witness the statement of Mst. Razia (P.W.1) should have been discarded. In so far as the question of interested witness is concerned let we make it clear that 'Interested witness' is one who has a motive to falsely implicate an accused or have some previous enmity to involve a person malafidely. There is nothing of this sort in this case and the deposition of Mst. Razia (P.W.1) being worthy of credence cannot be discarded. We may further point out that there is no rule of law that the statement of an interested witness cannot be taken into consideration without corroboration and uncorroborated version can be relied in context with other circumstances of a particular case. In this regard we are fortified by the following authorities:‑‑ PLD 1962 SC 269, PLD 1969 SC 488, PLD 1960 SC 387 and 1985 SCMR

203. The record of the case is silent that there was any serious enmity in‑between Mst. Razia (P.W.1) and that of appellant. It is indicative from record that mother and husband of Mst. Razia (P.W.1) were killed in a merciless manner and in such an eventuality substitution of real culprit with that of Muhammad Mansha (appellant) is hardly believable rather impossible.

12. It may not be out of place to mention heard that she sustained bullet injuries as a result of firing made by Muhammad Mansha (appellant), and thus, her presence at the spot cannot be doubted which otherwise was never challenged during cross‑examination. We are conscious of the fact that "the fact of witness being injured and such injuries not self‑suffered is not by itself indicative of witness having told truth". (1981 SCMR 795) but in the case in hand the statement of Mst. Razia has not been taken into consideration merely on the ground that she sustained injuries but sufficient incriminating material had come on record showing that the alleged firing was made by none else but by Muhammad Mansha (appellant). How weighty the statement of an injured witness should be and up to what extent it can be relied upon depends upon the circumstances of each case. It, however, lends corroboration to the factum of presence of injured witness at the place of occurrence and if some corroboratory and confirmatory material is available such statement cannot be discarded. For instance it was held in 1994 SCMR that "the fact 'that P.W.10 was an injured witness is a very important factor in appraising his testimony. Mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such ground. An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State, PLD 1962 SC.

269. In the present case P.W.10 is not an interested witness as nothing has been brought on record to show that he had motive for falsely implicating the appellants or was personally involved in any act of enmity between the parties. In Khalil Ahmad v. The State (1976 SCMR 161) the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person. Human blood‑stained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. The State (1970 SCMR 734) the testimony of four P.Ws. out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses, injuries sustained by two P.Ws. proved their presence and involvement in the occurrence and there was motive on the part of the accused. to attack the deceased. Further, their evidence found support from the medical evidence. Reference can also be made to Muhammad Akbar v. Muhammad Khan and others (PLD 1988 SC 274) and Shehruddin v. Allah Rakhia (1989 SCMR 1461 at 1465) where testimony of injured witness was accepted. In assessing the value of evidence of eye?witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence". Similarly in 1998 SCMR 1814 while discussing the said proposition it was held as follows:‑‑ "Before considering the above contentions on merit, it would be appropriate to state here first, some of the broad legal principles enunciated by this Court which should be kept in mind while deciding a case involving capital punishment. One such principle is that, if an interested witness claiming to be an eye‑witness charges a person with the commission of an offence, the first thing which the Court has to determine is, whether he saw the occurrence and was in a position to identify the accus6d and secondly, whether he should be believed for, convicting the offender without corroboration if the interested witness has charged only one person with the commission of offence or has charged more than one person and the number of persons charged by him appear to be reasonable from the circumstances of the case, then in the absence of anything in the evidence which rendered it unsafe to rely on his evidence his evidence is to be accepted without corroboration as substitution is a thing of rare occurrence and cannot be assumed readily and he who asserts substitution must lay foundation for it. But if the Court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case. (see Niaz v. State PLD 1960 SC 387)."

13. There is no question to deviate from the well‑entrenched legal position as enshrined in the above judgment. As mentioned hereinabove the statement of Mst. Razia (P.W.1) is worthy of credence, confidence? inspiring, credible and irrefutable and has rightly been considered by the learned trial and Appellate Courts. In the light of what has been stated hereinabove we are not inclined to accept this appeal which is dismissed being devoid of merit. Q.M.H./M.A.K./M‑108/S ???????????????????????????????????????????????????? Appeal dismissed.