Find a Lawyer

Criminal Petition for Special Leave to Appeal No. 89‑R of 1984, decided on 19th October, 1985.

(On appeal from the judgment and order of Lahore High Court dated 3‑11‑1984 in Criminal Appeal No 273 of 1981).

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), Ss.87, 88 & 204‑‑Leave to appeal‑‑Contention that accused absconded and defied arrest for a long time and this circumstance itself was a strong corroboration of ocular testimony and enough to justify conviction of accused‑‑No proclamation made under Ss. 87, 88 & 204, Criminal Procedure Code, and no search was made thus leaving, abscondence of accused in doubt‑‑Leave refused.

Sardar M. Ishaq Khan, Advocate Supreme Court with Ghulam Dastgir, Advocate‑on‑Record (absent) for Petitioner.

Aftab Farrukh and Rab Nawaz Khan Niazi, Advocates Supreme Court with Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents Nos. 1 and 2.

M. Inamul Haq, Advocate Supreme Court, Advocate‑General Punjab and Rao M. Yousuf Khan Government Attorney for Respondent No.3.

Date of hearing: 19th October, 1985.

Respondents Surat Khan and Habibullah Khan were tried by the learned Additional Sessions Judge, Mianwah on the charge under section 302 read with section 34, P.P.C. for committing the murder of Baz Gul by stabbing him with knives on 7‑12‑1977 at 3 p.m. in the Yard Railway Station, Daudkhel, Police Station, Kundian. Both were convicted and sentenced to death and to pay a fine of Rs. 10,000 each or, in default, to undergo 5 years' R.I. each. Half of the amount of fine, if realized, was ordered to be paid to the heirs of the deceased vide judgment dated 1‑4‑1984.

2. Report of occurrence was lodged by Jumma Gul P.W.8 brother of deceased at Railway Police Post, Daudkhel at about 3 p.m. on 7‑12‑1977 and formal F.I.R. was recorded by M.H.C. Muhammad Afzal Khan at Police Station Daudkhel at 8‑25 p.m. the same day. According to report EXh.P.G./1 the complainant Jumma Gul P.W.8 who was an employee of Fertilizer Factory, Iskanderabad, Daudkhel, he was proceeding towards his house at abut 3 p.m. after his shift was over at about 2 p.m. He got down from a bus near Railway Station, Daudkhel; when he saw from southern side deceased Baz Gul, who was working in Penicillin Factory and was off duty, proceeding towards his house with a bicycle in his hand and when he reached near the tree Habibullah and Surat Khan, residents of Sharif Khel, armed with knives, attacked the deceased after calling him out that "he would not be allowed to escape as he was responsible for the murder of Muqqaddar Khan". The deceased was dealt many blows with the knives by the two accused /respondents as a result of which he fell on the ground and died instantaneously. On the alarm raised by the deceased Noor Khan P.W.9 and Shahnawaz Khan (given up) also witnessed the occurrence. According to complainant Jumma Gul P.W.8 about 20 years ago the deceased was charged for the murder of Muqaddar Khan, grand‑father of the two accused /respondents. He was convicted by the trial Court, but on appeal, he was acquitted.

3. As mentioned earlier the report in this case was lodged by Jumma Gul with Railway Police Post, Daudkhel at about 3 p.m. on 7‑12‑1977. Accused Surat Khan was arrested on 11‑12‑1977 while Habibullah accused /respondent was arrested on 6‑2‑1978. On the arrest of the two accused /respondents, recovery of knives was also effected by the Investigating Officer.

4. Dr. Jamshed Alam P.W. 2 performed the post‑mortem examination. He found several stabs and incised wounds of various dimensions on the body of Baz Gul, deceased. Of which injury No.8 shows five stab wounds in area 4" x 3" each 1/2" x 1/8" on the back of chest in the middle and to the right; and injury No.9 shows two stab wounds 1/4" x 1/8" each 1‑1/2" each right to the area of injury No.8. According to the Doctor's opinion death was due to shock and haemorrhage caused by injuries Nos.l, 5, 8, 10 and 12 damaging both pleurae, lungs and right kidney.

5. The accused /respondents, when examined, denied the charges and stated that they have falsely been implicated due to enmity with the complainant party; and that since the murder of Muqaddar Khan several criminal cases were registered against the parties; and that the deceased had other enemies too. Both the accused /respondents were convicted and sentenced by the learned trial Court as stated earlier but on appeal the learned High Court Judges acquitted both of them and relevant part of their impugned judgment reads as follows:‑

" . . . . But he is not in a position to controvert the stand taken by learned counsel for the appellants to the effect that the ocular testimony was of chance and put up witnesses who are partisan, inimical and hostile and being interested witnesses, their testimony should not be accepted without corroboration which is not forthcoming in the present case. In view, the ocular testimony, in the instant case, is interested, partisan and hostile and, therefore, cannot be accepted, under the principle of abundant caution, without corroboration which is not forthcoming in the instant case as the recovery evidence is of no consequence. It appears to be an un‑witnessed occurrence. It cannot be ascertained that if these enemies of the deceased had murdered him, then who, from this family, were the actual assailants, and if the job was done by some other enemies of the deceased, then who they were. In that view of the matter, we are left with no other alternative except to arrive at the conclusion that the prosecution has not succeeded in establishing its case as against the appellants beyond any shadow of doubt..."

6. The learned counsel for the petitioner contended that the impugned judgment suffers from legal infirmities; that to hold that the two witnesses who admittedly are related to the deceased, had no personal enmity with the accused /respondents; that their presence on the spot cannot be questioned; and that it is not a rule of universal application that the statements of interested and inimical witnesses could not be believed without corroboration and if this rule has to be considered at all, it should be considered in its true perspective where both the accused/ respondents have absconded and defied arrest for a long time and this circumstance itself was a strong corroboration of the ocular testimony but the same has been completely ignored by the learned High Court Judges. In order to substantiate his arguments the learned counsel referred to Nazir Hussain v. Muhammad Shafi and others P L D 1965 SC 188; Mehr Khan and another v. The State P L D 1977 S C 41; Bacha Said v. The State P L D 1978 S C 102.

7. None of these cases are attracted to the facts of the present case as in these reported cases it has been held that when the witnesses are inimical or interested in the prosecution case, corroboration by independent evidence is required as a rule of prudence though this is not an inflexible rule, as it has been, observed in Nazir Hussain v. Muhammad Shafi and others P L D 1965 S C 188 by the learned Judges:

"We are also unable to agree with the High Court that the mere relationship of Murad Ali Shah with the deceased was sufficient to reject his evidence nor can we agree that the High Court was right in treating Latif as an interested witness merely because he was employed as a Mistry at the Mill of the deceased. As has been pointed out by this Court in the case of Niaz v. The State P L D 1962 S C 269 there is no inflexible rule that the statement of an interested can never be accepted without corroboration. In the present case we are not prepared to accept that Murad Ali Shah is an interested witness."

In the case cited the witnesses present on the scene of crime, were considered to be natural witnesses.

8. The learned counsel then argued that the accused had absconded after the occurrence and that this fact, taken together with the ocular testimony, was enough to justify the conviction of the accused respondents. It has been observed in Mehr Khan and another v. The State P L D 1977 S C 41 as follows:

"Unimpeachable ocular testimony receiving full support from medical evidence corroborated by accused petitioners, absconsion.

Fully brought home guilt to accused petitioner. Nothing turned on far‑fetchedness of motive."

We find that abscondance of the respondents has also been left in t doubt. This Court has observed as follows in Bacha Said v. The State P L D 1978 S C 102:

"The term abscond with its derivatives is not defined in the Code of Criminal Procedure, although it occurs in sections 87, 90‑A and 512 of the Code and also in section 172 of the Penal Code. In this connection section 87(1) of the Code lays down, that if any Court has reason to believe that any person, against) whom a warrant has been issued by it has 'absconded' or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring to appear at a specified place and time before it."

The only witness who appeared and made assertion regarding the accused /respondents' abscondance is Haji Ahmad Inspector P.W.14 who stated:‑

On 11‑12‑1977 I was given non‑bailable warrants Exh.P.O. against Surat Khan accused. I marked the said warrants to Sher Dil F.C. for the arrest of the accused vide Exh.P.O/1 Accused Surat Khan was consequently arrested on the same day and my note to that effect is Exh. P. O/2 Habibullah accused could not be arrested till 6‑2‑1978 in spite of my best efforts and that of Muhammad Inayat S.I. I also conducted raids for the arrest of Habibullah accused, but he was not present at his house or other known places".

No proclamation was made under sections 87, 88 and 204, Cr.P.C. were taken and search was made. Sher Dil F.C. was not produced at the trial. We, therefore, find no reason to interfere with the impugned judgment. Leave refused. Petition dismissed.

M.Y.H. Leave refused.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.