1997 SCMR 290 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑Qalb‑e‑Abbas alias 'Nahola' appellant was tried for the offences under section 302/149, P.P.C. alongwith, Abbas, Shafi Muhammad, Muhammad alias Jagga and Bashir, by a learned Additional Sessions Judge, Lahore, who vide his judgment dated 26‑2‑1991 convicted the appellant and his co‑accused under section 302/149, P.P.C. for forming an unlawful assembly and in prosecution of common object of that assembly committing the murder of Akbar and sentenced each one of them to imprisonment for life, fine and also awarded compensation to the heirs of the deceased. They were also convicted under section 148, P.P.C. and sentenced each one of them to rigorous imprisonment for two years. All the five convicts including Qalb‑e‑Abbas filed a joint appeal against their convictions and sentence in the Lahore High Court, Lahore, where a learned Judge in Chambers accepted the appeal of Abbas, Shafi Muhammad, Muhammad alias Jagga and Bashir and acquitted them. The conviction and sentence of the appellant were, however, maintained under section 302/149, P.P.C. His conviction and sentence under section 148, P.P.C. were set aside.

2. Leave to appeal was granted to the appellant to consider whether the High Court was justified in treating motive as a corroborative circumstance for the ocular testimony so far as the appellant was concerned particularly when the same ' ocular testimony had been disbelieved against his other co‑accused.

3. Briefly the prosecution case is that about 6/7 months prior to the occurrence; Amjad; a nephew of Manzoor Ahmad complainant was effectively fired at by Qalb‑e‑Abbas appellant and. Mansha and due to the fire shot injury his left arm had to be amputated. In that case, Akbar was cited as an eye witness. The appellant and his co‑accused were dissuading him from deposing against them, but he had declined to do so. In order to exterminate him, the appellant arid his co‑accused formed themselves into an unlawful assembly and in prosecution of the common object of that assembly duly armed with lethal weapons like rifles, pistols and gun emerged at the Khal at 9‑00 a.m. where Akbar had gone to ease himself and opened fire. The fire shot of Bashir accused hit him on the back of his head and as a result he fell dead. The occurrence was alleged to have been witnessed by Manzoor Ahmad complainant (P. W .7) and Jehangir (P.W.8) apart from Anwar and Hasan P. Ws. who were given up at the trial. 4, According to the medical evidence, Akbar deceased had suffered an ante‑mortem fire‑arm injury of the size of 7 c.m. x 6 c.m. on the parieto- occipital region, midline margin of the wound was irregular and brain was oozing out. There was also a gap in the underlying bone. Both parietal occipital bones and left temporal bone with anterior cranial fossa on the left side were found fractured. This injury, in the opinion of the doctor, was sufficient to cause death in the ordinary course of nature.

5. During the investigation of the case Azmat Bari, Inspector (P.W.10) had not found any cattle‑heads or pots or utensils for the purpose of food neat the spot. Munir Ahmad, ASI., who had also investigated the case, had accepted the plea of alibi raised by Bashir accused‑appellant before the High Court. In consequence, he was neither arrested during the trial nor any recovery was made from him.

6. The appellant before us in his statement under section 342, Cr.P.C., while accepting the allegation that Akbar deceased was a P.W. in a case under section 307, P.P.C. against him and others, denied that it was a motive for the offence saying that there were other several witnesses in the said case and, therefore, the murder of Akbar deceased would have served no purpose. Similarly, he denied the principal charge of the murder of Akbar deceased and also the recovery of rifle P.7 during the investigation at his pointation. When asked as to why this case had been registerd against him, his defence was that it was due to enmity and that he was innocent.

7. The appellant and co‑accused are closely related inter se as is evident from para.7 of the impugned judgment of the High Court. Sher Muhammad, Shafi Muhammad, Bashir accused are real brothers inter se. They have also a sister, namely, Mst. Saain Bibi. Qalb‑e‑Abbas appellant is the son of Bashir, Mirza since acquitted is the son of Sher Muhammad and Abbas accused is the son of Mst. Saain Bibi. Muhammad alias Jagga and Mansha are the sons of Shafi accused.

8. A learned Single Judge in the High Court was of the considered view that the two eye‑witnesses of the occurrence, namely, Manzoor (P.W.7) and Jehangir (P.W.8) were closely related to the deceased, in that, Manzoor was the father of Akbar deceased while Jehangir was his maternal uncle, therefore, the convictions against all the accused could not have been recorded unless their testimony was corroborated in material particulars which, according to the learned Judge, was not forthcoming on the record. While giving benefit of doubt to the acquitted co‑accused of the appellant, the learned Judge in the High Court reached the conclusion that no crime empty was recovered from the spot notwithstanding the charge in the First Information Report that the accused and the appellant after the commission of the‑offence ran away while firing; and that the version of the occurrence given by the eye‑witnesses was exaggerated. While acquitting the four co‑accused by the High Court including Bashir who had been charged for solitary effective shot resulting in the death of the deceased, only the appellant was convicted on the ocular testimony furnished by Manzoor and Jehangir P.Ws. who were admittedly. interested witnesses. For corroboration of the testimony of these interested witnesses, reliance was placed for the purpose of corroboration on the motive part of the prosecution evidence.

9. Mian Aftab Farrukh, learned counsel appearing on behalf of the appellant, contended that motive part of the prosecution evidence has never been taken to be a corroborative piece of evidence so as to render the evidence of the interested witnesses worthy of credence. He also contended that the proposition had been settled by this Court that so long a substantive or direct evidence is not available, no other type of evidence howsoever convincing it may be, could be relied upon or could form the basis of conviction. In this context, the learned counsel 'pointed out that the existence of motive/enmity was taken neither as substantive nor a direct evidence nor a corroborative piece of evidence. Reference was made to the precedents of this Court in: (i) Humayun v. The State (1987 SCMR 914) and (ii) Muhammad Noor and another v. Member‑I, Board of Revenue, Balochistan and others (1991 SCMR 643). In the latter case of Muhammad Noor supra no. ocular evidence was available. Nonetheless, the appellants therein were convicted on the basis of the following three types of evidence:‑‑ (i) Existence of enmity between the parties; (ii) abscondence of the appellants; (iii) that the father of the appellants had admitted the guilt of their sons, compromised the matter on payment of a sum of Rs.80,000 but then resiled from the same.

10. The question came up for consideration before this Court whether the Tribunals and the High Court were justified in convicting the appellants therein on the basis of such evidence on a capital charge. A learned Full Bench of this Court clinched the matter in the following paragraph:‑‑ "The answer obviously is in \the negative. We say because none of the pieces of evidence relied upon is a substantive piece of evidence and so long a substantive or direct evidence is not available no other type of evidence, howsoever convincing it may be, can be relied upon or can form the basis of conviction. The existence of motive/enmity is neither a substantive nor a direct evidence. It is not a corroborative piece of evidence either. The motive/enmity is only a circumstance which may lead to the commission of an offence. It is a starting point for committing a crime but under no circumstances it can be taken as an evidence. Further, motive/enmity is a double‑edged weapon. Offence may be perpetrated because of the existence of motive/enmity and it can also be a basis of a false charge. The same is the case with abscondence. It is true that people do run away after committing the crime but it is equally true that people also scare themselves because of a false charge, the fear and highhandedness of the police. In this view of the matter it can hardly be said that motive/enmity or the matter of their abscondence has any value at all so long as direct evidence is not forthcoming."

11. The learned counsel for the appellant then submitted that four out of five accused had been acquitted by the High Court, on appeal, in this case, therefore, placing constructive liability on the appellant under section 149, P.P.C. had also rendered the charge of an unlawful assembly untenable. We are also of the view that in maintaining the conviction of the appellant under section 149, P.P.C., the approach of the High Court was not sound in placing constructive liability on the appellant for the offence of murder. Reliance was correctly placed on the dictum of this Court in the case of Rehmat and 2 others v. The State (1969 SCMR 537).

12. We find force in the contentions of the learned counsel for the appellant. Right from the lodging of the first information report till the testimony of Manzoor complainant (P.W.7) and Jehangir (P.W.8) in Court, the case of the prosecution was that it was Bashir accused since acquitted whose solitary fire shot proved effective in killing Akbar deceased. The charge against the appellant and his other co‑accused since acquitted was obviously of ineffective firing. The learned Single Judge in the High Court, while considering the highly interested nature of the two eye‑witnesses, came to the conclusion that it stood corroborated by the evidence of motive. The evidence of the two eye witnesses could not have been accepted even against the appellant unless it had been corroborated by independent evidence of a very reliable nature. The law is settled that the evidence of motive could not furnish the necessary corroboration of ocular evidence in this case. This Court in the case of Ghulam Haider v. The State (1980 SCMR 289), with which we respectfully tend to agree, has already laid down the law that the evidence of motive cannot possibly furnish sufficient corroboration of the ocular evidence because the evidence of motive is always a weak piece of evidence.

13. Barring the fatal injury to Akbar deceased assigned to Bashir accused since acquitted, the appellant who was generally charged for ineffective firing could not be convicted for the offence under section 302, P.P.C. He could at worst be punished only for the offence of intimidation which was actually committed by him and not for the one which might have been committed by him. See Nur Muhammad v. The Crown (1969 SCMR 724). It is unfortunate for the prosecution that neither the State nor the complainant has challenged the acquittal of Bashir co‑accused of the appellant on the success of the plea of alibi before the trial Court.

14. In the light of what has been observed above, the prosecution case is replete with serious infirmities both factual and legal. The principal accused, I namely, Bashir to whom effective solitary fire shot had been attributed, was acquitted by the trial Court against which neither the State nor the complainant had pursued the further remedy of appeal or revision. The learned Single Judge in the High Court, on the other hand, acquitted all the four co‑accused of the appellant under section 302/149 read with section 148, P.P.C. Even the appellant had been acquitted of the charge falling under section. 148, P.P.C. He could not, therefore, have been possibly convicted under section 149, P.P.C. because the charge of unlawful assembly against him was relatable at least to five persons and in this case his four co‑accused had already been acquitted.

15. In that view of the matter, it was not proper for the High Court to maintain the conviction and sentence awarded to the appellant. His appeal is, therefore, allowed, his conviction and sentences are set aside and in consequence he is acquitted. He has already been released on bail at the time of granting leave to appeal by this Court on 25‑4‑1995. In view of his acquittal, he need not surrender to his bail bonds. N.H.Q./Q‑69/S Appeal allowed.