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Criminal Petition No. 114‑R of 1982, decided on 23rd November, 1983.

(From the judgment dated 6‑4‑1982 of the Lahore High Court Rawalpindi Bench, passed in Criminal Appeal No. 4 of 1981 and Murder Reference No. 18 of 1981).

‑‑‑ Art. 185(3)‑Penal Code (XLV of 1860), S. 302‑Murder‑Evi dence‑Petition for leave to appeal against acquittal‑Ocular evidence Held, must stand test of strictest possible scrutiny before it can be relied upon‑Acquitted respondents joined without evidence of their having common cause against deceased or having conspired to commit crime‑Eye‑witnesses found to have reason to falsely ‑implicate one of accused‑High Court found not unjustified in declining to place un stinted reliance on ocular evidence‑Mere fact that another view diff erent from that of High Court could be taken‑‑Held, not sufficient to calf for interference with judgment of High Court‑Leave to appeal refused.

Muhammad Ilyas v. State P L D 1967 S C 443 rel.

Mian Nusratullah, Senior Advocate Supreme Court instructed by Ch. Karam Elahie, Advocate‑on‑Record for Petitioner.

Advocate‑General, Punjab and Ghulam Dastgir, Advocate Supreme Court for Respondent No. 3.

Date of hearing: 23rd .November, 1983.

Petitioner Malik Khan, the complainant in the case, is aggrieved by the judgment dated 6‑I‑1982 of the Lahore High Court, whereby on appeal the conviction and sentence of respondents Muhammad Yaqub and Samandar Khan for the murder of Amir Hussain, a brother of the complainant, recorded by the Court of Session, Jhelum, was set aside and they were acquitted..

2 The facts briefly stated are that on 18‑8‑1980 at 8‑30 a. m. the complainant and the deceased were going on bicycle from their village to Chakwal that near the dera of Muhammad Bakhsh, the complainant got off the cycle in order to urinate while the deceased proceeded on but he had covered only a short distance when the two respondents each armed with '12 bore gun attacked him. Samandar Khan fired first hitting the deceased on his right hand as a result of which he fell down from the cycle. Muhammad Yaqub fired the next shot hitting the deceased on the chest and killed him at the spot. The occurrence was also witnessed by Muhammad Asghar Khan (P. W. 13) and Haq Nawaz and Sultan Muhammad (not produced). The report was lodged at 10 a. m. The investigating officer recovered the cycle from the spot and arrested Muhammad Yaqub on 22‑8‑1980 and Samandar Khan on 25‑8‑1980. A gun each at their instance was also recovered, but in the absence of any crime empty, the Fire‑arms Expert was unable to say whether the pellets had been fired from the said guns. The prosecution thus relied on the ocular testimony of the two eye witnesses, namely, Malik Khan complainant (P. W. 12) and Muhammad Asghar Khan (P. W. 13). The motive for the crime was subs1sting enmity between the deceased and Jehan Khan, father of Samandar Khan respon dent. It was brought out in the evidence that the deceased had been convicted under section 325, P. P. C. for causing hurt to Jehan Khan though he had been later acquitted and that on the Eid Day, which was, a few days before the occurrence, the deceased and Samandar Khan had exchanged abuses in the course of which the latter had threatened with revenge. No specific motive was asserted against Muhammad Yaqub.

3. Both the accused denied the allegations and asserted that they had been involved on account of enmity and suspicion.

4. The trial Court believed the prosecution case and while convicting them sentenced Muhammad Yaqub to death plus a fine of Rs. 2,000 and Samandar Khan to imprisonment for life plus a fine of Rs. 2,000.

5. The High Court, however, considered the reliability of the two ocular witnesses questionable. Malik Khan complainant being a brother of the deceased could not, it was held, be said to be a disinterested witness inasmuch as there was enmity between the deceased and Samandar Khan, while Muhammad Asghar Khan, the other ocular witness, though not related to the complainant, was only a chance witness and was on inimical terms with Muhammad Yaqub respondent as it bad been brought out in his cross examination that Hayat, the grandfather of Muhammad Yaqub, had appeared as a witness in a murder case against the father of Muhammad Asghar Khan and that Sher Muhammad, a son‑in‑law of Muhammad Asghar Khan had been injured by a cousin of Muhammad Yaqub for which a case under section 325, P. P. C. had been registered. Moreover, Muhammad bad neither a motive of his own to commit the murder nor was he shown to be related to or friendly with Samandar Khan and thus his plea of false implication on account of enmity with Muhammad Asghar Khan was held to be not without basis. In the opinion of the High Court, the ocular testimony, therefore, could not be accepted without corroboration which was available neither from the medical evidence nor from the evidence of the Fire‑arms Expert. In this connection, the High Court observed that the course of the fatal injury showed that the shot had been fired from a higher level for which there was no explanation and that according to the Medical opinion both the injuries could have been caused by one shot.

6. In a case of capital nature, where the evidence against the accused is only ocular, the same before it can be relied upon must stand the test of strictest possible scrutiny. In this case, the two respondents had been joined without evidence of their having common cause against the deceased or having conspired to commit the crime. It is also in evidence that one of the two eye‑witnesses had reason to falsely implicate Muhammad Yaqub. In Muhammad Ilyas v. Stare (PLD 1967 SC 443) it had been held

"But a case in which three separate motives applying to three separate groups are sought to be combined is of an exceptional nature, and where the proof of motive against each of the groups is startingly weak, the Court should be alert to the possibility that the joinder is artificial, i. e., not connected with the incident itself, but contrived by inter ested parties for the purposes of the resulting case. If there were any truth in the allegation of joinder, it would be natural to find proof that shortly before the occurrence, there had been occasion for revival of one or more of these enmities and further proof to establish cons piracy, or at least association between the groups effected by the sepa rate motives.

In a case of this kind, the evidence of eye‑witnesses requires to be examined with special care to ensure that the combination of the groups has not been effected for the satisfaction of the witness's own enmities, In such cases, the safe dispensation of justice is not ensured by merely examining each witness's evidence separately and considering whether it can be believed and if so to what extent, in view of the real danger of the whole case being fabricated at the instance of the witnesses."

The above dictum is fully applicable to the case in hand and as such the High Court was not unjustified in declining to place unstinted reliance on the ocular evidence. Even otherwise, if the view taken by the High Court is possible on the facts of the case which it is, no interference is called for merely because another view could also be taken. No case is, therefore, made out for interference. The petition for leave to appeal is accordingly rejected.

S. Q. Petition rejected.

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