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Criminal Appeal No. 147 of 1977, decided on 17th December, 1985.

(On appeal from the judgment, dated 2‑6‑1975 of the Lahore High Court, Lahore in Criminal Appeal No. 367 of 1974 and Murder Reference No. 150/74).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Leave to appeal granted to consider question whether view taken by High Court that ocular evidence in case was very reliable, was justified.

‑‑‑S. 302‑‑Ocular testimony of interested eye‑witnesses found unreliable without corroboration‑‑Recovery witness producing crime weapon which he allegedly seized from the accused after three days of occurrence‑‑No valid explanation furnished for such delay‑‑There being discrepancy between the recovery and evidence of recovery witness, same, held, did not furnish necessary corroboration‑‑Conviction set aside.

Muhammad Hanif Bhatti, Advocate Supreme Court for Petitioner.

Ch. Ghulam Ahmad, Advocate Supreme Court and Rao Muhammad Yusuf, Advocate‑on‑Record for the State.

Date of hearing: 17th December, 1985.

‑The appellant was tried by the Sessions Judge, Sialkot, alongwith his father (Muhammad Yaqub) and another relation (Abdul Latif) for the murder of Muhammad Iqbal deceased. He was sentenced to death by the Sessions Judge, Sialkot but his co‑accused were acquitted. On appeal and reference to the High Court the sentence of death passed on the appellant was altered to that of imprisonment for life. He filed a petition through jail to this Court, seeking leave to appeal against the judgment of the High Court and leave was granted to consider the question whether the view taken by the High Court that the ocular evidence in this case was very reliable was justified.

We have gone through the evidence with the help of the learned counsel for the appellant and have reached the conclusion that it is not possible to subscribe to the view taken by the High Court that the account furnished by the eye‑witnesses was quite reliable and could be acted upon, without any other corroboration thereto.

The prosecution case was based on the evidence of the three so‑called eye‑witnesses and the recovery of the crime weapon (namely a knife produced by one of the eye‑witnesses viz. Ahmad Hussain P.W.). The eye‑witnesses were P.W. Jamil Iqbal‑‑the son of the deceased, P.W. Sardar Ali the maternal‑uncle of the deceased and P.W. Ahmad Hussain. According to the version of the abovementioned three witnesses the acquitted accused gave a Lalkara and instigated the appellant to kill the deceased whereupon he stabbed the deceased in the abdomen with a knife which he was carrying. This knife was seized by Ahmad Hussain P.W., but strangely enough it was not handed over to the Investigating Officer straightaway but he retained it with him for another three days.

The case of the appellant, as also of the acquitted accused, was that they had been falsely accused on account of enmity. Jamil Iqbal and Sardar Ali P.Ws., the alleged eye‑witnesses, who were examined, were close relatives of the deceased but the prosecution did not examine two witnesses named in the F.I.R., while P.W. Ahmad Hussain, who was examined as an eye‑witnesses, was not named in the F.I.R.

The learned Sessions Judge being cognisant of this aspect of the case viz. that the account of the eye‑witnesses produced in the case needed corroboration found such corroboration from the recovery of the knife by Ahmad Hussain P.W., who had allegedly snatched it from the hand of the appellant. But, as pointed out earlier, the knife was produced by the said witness before the Investigating Officer three days after the occurrence and he was not able to give any valid reason for this delay in producing it nor of the further fact that the knife was not stained with human blood. Nevertheless, the Sessions Court relied on this recovery and went on to observe that the injury was a solitary injury on the stomach. It is not easy to comprehend the relevancy of this observation because the circumstance that the injury was a single injury was not relevant to the question how a knife blow which pierced the abdomen could be inflicted without the crime weapon being stained with human blood. On the other hand, by adopting this peculiar reasoning the Sessions Court failed to notice that the recovery, in fact, reacted against the veracity of the said witness (Ahmad Hussain P.W.), on whom it placed such great reliance. It is true that the High Court did not rely on this recovery but it escaped the attention of the High Court that the discrepancy between the recovery and the evidence of the so‑called recovery witness was relevant to the appreciation for the veracity and reliability of the said witnesses testimony.

We further note that the Sessions Court had acquitted the two other accused mainly on the ground that there was no corroboration of the ocular evidence. This view was not accepted by the High Court on the ground that the corroboration was not necessary because Jamil Iqbal P.W. did not have any motive to falsely implicate the appellant as there was no history of any previous enmity between the parties. How ever, it was overlooked that the said witness had admitted that a cousin of one of the accused (Abdul Latif) had filed a case under section 307, P.P.C. against the brother of the witness. He also admitted in the cross‑examination:

"It is correct that my deceased father had been litigating with Latif accused for the last decade or so."

Similarly, Sardar Ali P.W. 14 the other eye‑witness, is the maternal‑uncle of the deceased. According to him he left the spot immediately after the incident leaving the victim and the witnesses there. Neither he went to the hospital neither he knew how the victim was taken to the hospital. On being asked why he left the victim at the spot without attending to him he said that as his wife was not feeling well he thought of first going to his house without attending the victim although the victim was the son of his sister and was mortally wounded. It is obvious that hardly any reliance can be placed on the testimony of such a witness.

Our conclusion is that the ocular account furnished by Jamil Iqbal P.W. 12 and Sardar Ali P.W. 14 could not be accepted at face‑value and did require corroboration and further that the corroboration sought to be furnished by the recovery of the knife from the appellant which was allegedly produced by Ahmad Hussain P.W. 13 before the Investigating Officer, in the circumstances noted above already, did not furnish the necessary corroboration.

The result is that this appeal must succeed and the judgment of the High Court set aside. The appeal is, accordingly, accepted and the appellant ordered to be set at liberty forthwith, if not wanted in any other case.

M. I. Appeal accepted.

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