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Criminal Miscellaneous No. 298/Q of 1976, decided on 29th June 1976.

-- S. 215 read with S. 561-A-Commitment order-Quashment of All material witnesses exonerating accused but Enquiry Court committing accused, relying on circumstantial evidence alone Held. Case being a case of no evidence; no commitment order could be passed, in circumstances-Order quashed.-[Quashment of pro ceedings].

Director of Public Prosecution v. Hester (1972) 3 All E R 1056, Muhammad Nazir v. The State P L D 1975 Lab. 736 and Muhammad. Nazir v. State 1973 P Cr. L J 609 ref.

Mian Aftab Farrukh for Petitioner.

Ata-ur-Rehman for the State.

Date of hearing : 23rd June 1976.

This is a petition filed under section 215, -Cr. P. C. for quashment of the commitment order dated 13-8-1976 passed against Asghar Majid petitioner in a case under section 302, P. P. C. by Magistrate Ist Class, Chiniot.

2. The case against the petitioner arose from an occurrence, which took place on 17-3-1974 at 4 p.m., in which the petitioner allegedly caused to Khalid deceased two injuries with a rambi, one below the neck and the other on the left side of the abdomen. The injured was taken to Civil Hospital, Chiniot but he did not survive. The reason for the attack, accord ing -to the F. I. R., is that the deceased had objected to the petitioner teasing some women who had been passing by, which had led first to exchange of abuses between the petitioner and the deceased, and then to mutual grappling; in the course of which the petitioner had fetched the rambi from the nearby shop of Amir cobbler and had inflicted therewith the said injuries. The petitioner alongwith the rambi had been promptly produced before the police by Muhammad Saleem complainant, who is brother of the deceased, and the F. I. R. had been lodged at 4-30 p.m.

3. The point of law upon which this application has been moved is. that the commitment order had been passed upon no evidence. In the inquiry, the prosecution had produced ten witnesses, of whom Muhammad Saleem (P. W. 1), Muhammad Iqbal (P. W. 3), Amir (P. W. 4), and Jaffar Abbas (P. W. 5) are eye-witnesses. Another eye-witness Ashfaq Ahmad had been given up as having been won over. Now, none of these eye-witnesses examined had supported the prosecution. Muhammad Saleem complainant, who as already mentioned is the brother of the deceased, stated that on his arrival the fight had already been over and that he himself had not seen the occurrence.

The Prosecuting Inspector had declared him hostile and subjected to cross-examination. During the cross-examination he had been confronted with his statement in the F. L. R. but he had consistently denied the correctness of the same. Muhammad Iqbal (P. W. 3) stated that the name of the assailant was Asghar but when pointed to the petitioner, he had told the Court that the petitioner had, not been the murderer. He has also been declared hostile and subjected to cross-examina tion without any advantage to the prosecution. Amir (P. W. 4) is the cobbler from whose shop the petitioner had allegedly picked up the rambi but he denied to have been present at the time of the occurrence. Jaffar Abbas (P. W. 5) made a similar statement to the effect that he had not been present at the time of the occurrence nor did he know the name of the culprit. The other witnesses are Ghulam Dastgir (P. W. 2), who had prepar ed the site plan; Ghulam Farid Constable (P. W. 6) who had taken the sealed parcels to the Chemical Examiner; Sh. Muhammad Aslam (P. W. 7), who had identified the dead body before the Medical Officer; S. H. O. Nabi Bakhsh (P. W. 8), who had investigated the case and had recovered the rambi (Exh. P. 11), the shirt (Exh. P. 2) and the shalwar (Exh. P. 3), all of which had been found blood-stained by the Serologist; Ghulam Muhammad Moharrir (P. W. 9), who had kept the sealed parcels in his custody until-their despatch to the Chemical Examiner; and Dr. Akhtar Hussain Jaffari (P. W. 10), the Medical Officer, who 'had conducted the post-mortem examination. The learned Inquiry Magistrate had held:

"All the eye-witnesses in this case have not supported the prosecution version and were declared hostile at the request of the P. S. L"

He, however, committed the petitioner on the grounds that ((1972) 3 AII E R 1056) he had been "arrested alongwith the weapon of offence red-handed" (P L D 1975 Lab. 736) the weapon and his clothes had been found blood-stained and (1.973 P Cr. L J 609) the medical evidence had supported the prosecution.

4. As can be seen, Ghulam Dastgir, Ghulam Farid, Sh. Muhammad Aslam and Ghulam Muhammad Moharrir are only formal witnesses. The cir cumstantial evidence is the recoveries, tile report of tile Serologist and the statement of medical officer. The witness to the recovery of the rambi are Amir (P. W. 4.) and Jaffar Abbas (P. W. 5) and those of the blood-stained cloth:, of the petitioner are Muhammad Saleem complainant and Jaffar Abbass(P. W. 5.), but none of them supported the prosecution. The circumstantial evidence regarding the recoveries as furnished by the S. H. O., the report of the Serologist and the statement of the Medical Officer are only corroboratory in nature and do not per se constitute substantive evidence. The purpose of cor roboratory evidence is only to confirm the veracity of the substantive evidence, so that the conviction based upon such evidence: becomes beyond every reason able doubt. The corroborative evidence, even if available, loses its efficacy if there is nothing, which it seeks to corroborate. And a conviction cannot be recorded on the basis of the corroborative evidence itself. It will be useful in this connection to refer to the following view expressed by the House of Lords in Director of Public Prosecution v. Hester ((1972) 3 All E R 1056)

"The essence of corroborative evidence is that one creditworthy witness confirms what another creditworthy witness had said. Any risk of the conviction of an innocent person is lessened if conviction is based on the testimony of more than one acceptable witnesses. Corrobora tive evidence in the sense of some other material evidence in support implicating the accused furnishes a safeguard which makes a conclu sion more sure than it would be without such evidence. But to rule it out on the basis that there is some mutuality between that which confirms and that, which is confirmed would be to rule it out because of its essential nature and indeed because of its virtue. The purpose of corroboration is not to give validity or credence to evidence, which is definite suspect or incredible but only to confirm and support the:' which as evidence is sufficient and satisfactory and credible . . . . . . . . ."

From these discussions it is clear that the present is a case of no evidence.

5. It is by now well established that the question of passing a commit ment order upon no evidence is one of law. See Muhammad Nazir v. State (P L D 1975 Lah. 736) and Muhammad Azam v. Stale (1973 P Cr. L J 609). In all these cited cases, tile commitment orders had been quashed under section 215, Cr. P. C. on account of there) having been no evidence,

6. 1, therefore, accept the present petition, quash the commitment order dated 1 3-8-19 7 passed against the petitioner and direct that he be discharged in the case.

Proceedings quashed.

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