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Criminal Petition for Special Leave to Appeal No. 30-R of 1980, decided on 8th March, 1981.

(On appeal from the judgment and order of the Lahore High Court dated 5-5-1980 in Cr. A. 1097 of 1978).

--- S. 302-[Murder-case]-Appeal to Supreme Court-Appreciation of evidence - Prosecution witness closely related to deceased - Could not be said to be not inimical witness-Corroboratory witness hostile witness--Explanation given by one prosecution witness for his presence at time of occurrence inconsistent-Description of occurrence in Sessions Court inconsistent with his version of occurrence in lower Court-Witness stating respondents having fired with a 'l2 bore pistol but medical evidence proving deceased having been killed by a bullet -- View taken by High Court reasonable and relating entirely to appreciation of evidence and not liable to interference Corroboratory evidence being that of an unreliable witness, his evidence could not corroborate other piece of tainted evidence Respondents, held, rightly acquitted by High Court---Constitution of Pakistan (1973), Art. ,185(3).-[Witness].

Sardar Muhammad Ishaq Khan, Advocate and M. Afzal siddiqj, Advocate-on-Record for Petitioner.

Ch. Muhammad Tariq Azam, Advocate and Ch. Akhar Ali, Advocate-on-Record for Respondents.

M. Kawkab Iqbal, Advocate for the State.

Date of hearing: 8th March, 1981.

The first three respondents (to whom we will refer us the respondents) in this petition were convicted by an Additional Sessions Judge, Rawalpindi, for the murder of Miskeen Shah, and whilst the first respondent was sentenced to death, the other respondents were sentenced to life imprisonment. Fines were also imposed. The respondents filed an appeal against their conviction in, the Lahore High Court, which was heard with the reference from the Sessions Court. The appeal was allowed and the respondents were acquitted. Hence this petition for leave.

The motive for the murder, according to the prosecution, was that Murtaza Shah, the nephew of the first two respondents (who are cousins) had been murdered by the nephews of Miskeen Shah. But, the deceased had conducted the defence of his nephews successfully and got them acquitted. Therefore, the said respondents had a motive for murdering him. And, in order to prove its case, the prosecution bad relied on two eye-witnesses. However, as one of the eye-witnesses was not available the prosecution only examined Faqir Shah, who implicated the respondents. Then as to the other evidence, as Mr. Ishaq Khan only relied on the corroboratory evidence of Chanpir Shah, it is sufficient to state that this witness claimed to have seen the respondents running away immediately after the occurrence. Now, although these witnesses were closely related to the deceased, the Additional Sessions Judge was of the view that they were merely interested witnesses and not inimical witnesses and, therefore, there was no reason to doubt their evidence which was sufficient to prove the guilt of the respondents. Hence the conviction.

In a much more careful appreciation of the evidence (we say so with res pect) the learned Judges of the Lahore High Court rightly pointed out that on the prosecution case for the motive of the occurrence, it could not possibly be said tout the aforesaid two witnesses were not inimical witnesses, because they were more closely related to the deceased. And, the finding of the trial Court that the corroboratory witness, Chanpir Shah, was not a A hostile witness, is so patently erroneous that neither of the learned counsel supported this finding. However, Mr. Isha Khan submitted that the trial Court had rightly accepted Faqir Shah to be a reliable witness and that the High Court had erred in reversing this finding. But the High Court had reversed the finding of the Additional Sessions Judge for cogent reasons. In the first place, as rightly pointed out by the learned Judges, the witness, was very close related to the deceased and on tale prosecution case for the motive for the murder, it could slot reasonably be contended that the witness was not an inimical witness. Secondly, the obvious question which required examination was whether he had really seen the occurrence, because he bad no means of knowing that the respondents had laid an ambush in order to kill the deceased. And the witness's explanation for his presence at the right time and place was that he was going to enquire B about the health of a relation, Imtiaz Shah. But, he had stated in the lower Court that he had seen his ailing cousin the day earlier. Therefore, this was a circumstance which cast doubt on his claim to have seen the occurrence. But the witness could have submitted an explanation of the seeming inconsistency. He did not. Instead he falsely tried to repudiate his lower Court statement. Secondly, his description of the occurrence in the Session Court was inconsistent with his version of the occurrence in the lower Court. Thirdly, whilst he was emphatic that the respondents had fired with a '12 bore pistol, the medical evidence proved that the deceased had been killed by a bullet which was extracted by the doctor, who carried out the post-mortem. Therefore, we are inclined to agree with the view of the learned Judges that the witness was not a witness of truth, because of his enmity to the respondents. In any event, the view thus taken was a reasonable view and, relates entirely to the appreciation of evidence, therefore, we would not be justified in interfering with the finding that the witness was not a reliable wit ness. But the only other corroboratory evidence is that of his cousin, Chanpir Shah, therefore, we agree with the view of the learned Judges that one piece of tainted evidence cannot be corroborated by another piece of tainted evidence. .

It is not a fit case for the grant of special leave. The petition is, therefore, dismissed.

Petition dismissed.

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