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Criminal Appeal No. 102 of 1986, decided on 23rd October, 1986.

‑‑‑S.302/34‑‑Appreciation of evidence‑‑Interested ocular testimony‑ Admissibility‑--Eye‑witnesses very closely related to deceased and corroboration by independent sources not available‑‑Rule of prudence, held, required that benefit of doubt be extended to accused‑‑Conviction of accused on evidence of interested witnesses could only be sustained if same appeared to Court trustworthy and truthful.

P L D 1977 S C 557; P L D 1982 Kar. 881 and 1986 P Cr. L J 10 ref.

‑‑‑S. 302/34‑‑Eye‑witnesses interested and closely related to deceased‑ Deep‑rooted enmity existing between parties on account of blood‑feud‑ Possibility of false involvement not ruled out‑‑Murder taking place in broad‑daylight and a large number of people attracted to scene of incident but independent persons not examined by prosecution‑ Contradictions existing in testimony of ocular witnesses‑‑Medical evidence as well as motive not amounting to independent corroboration of prosecution witnesses claiming to have seen occurrence‑‑Mashirs of recoveries also closely related to deceased and no disinterested Mashir was examined which cast doubt upon recovery of blood‑stained hatchet and blood‑stained shirt‑‑Accused given benefit of doubt and acquitted in circumstances.

Lashkari v. State P L D 1981 Kar. 1; Muhammad Afzal v. State 1983 S C M R 1; Mooso v. The State 1975 P Cr. L J 206; Bagh Ali v. The State P L D 1973 S C 321; Allah Rakha v. The State 1985 SCMR 453 and Ghulam Sikandar v. Mamaraz Khan P L D 1985 S C 11ref.

Muhammad Hayat Junejo for Appellants.

Ali Bux Laghari for the State.

Date of hearing: 20th October, 1986.

By judgment, dated 30‑4‑1980 in Sessions Case No. 876 of 1976, the learned II Additional Sessions Judge, Larkana, convicted appellants Muhammad Saleh and Sheral under section 302 read with section 34, P.P.C. and sentenced each of them to undergo imprisonment for life and fine of Rs.5,000 each or in default to suffer R.I. for one year more. It was further directed that in case the amount of fine was recovered, Rs.5,000 out of the recovered amount shall be paid to the heirs of deceased Ali Hassan Khokhar as compensation under section 544‑A, Cr.P.C. In the case there were three accused but third accused Razi was acquitted by the learned trial Court. Being aggrieved, the two appellants have filed the present criminal appeal. I have heard Mr. Muhammad Hayat Junejo, learned counsel for the appellants and Mr. Ali Bux Laghari, learned counsel who has appeared on behalf of the State.

2. Deceased in this case is Ali Hassan and according to the prosecution the incident had taken place at 1‑30 p.m. on 28‑3‑1976 on a Katcha road near the land of Ali Hassan Punjabi in Deh Saidudeno, Taluka Ratodero, District Larkana. First information report was lodged by complainant Sain Rakhio at 3‑15 p.m. at Naudero Police Station, which is at a distance of about three miles from the place of occurrence. The F.I.R. reads as follows:‑‑

"Today, I, Ali Hassan and his son Muhammad Hassan were returning to the village from land after cutting grass. At about 1‑30 p. m. when we reached near the land of Ali Hassan Punjabi at 'Katcha' road, all of a sudden nearby Razi son of unknown, Muhammad Saleh son of Razi and Sheral son of Muhammad Yousuf by caste Bhatti resident of Ganhwar Bhatti emerged from Canal. Out of them, Muhammad Saleh and Sheral were armed with hatchets while the other with Lathi. Razi incited Muhammad Saleh and Sheral not to leave Ali Hassan because he had got their relative Mithal Bhatti murdered at his invitation, Muhammad Saleh and Sheral gave hatchet blows to Ali Hassan, in the result whereof, he fell down. We raised cries, whereupon Karim Bux son of Subhio Khakhar also came there running. On seeing him, coming near to them, the accused persons went away to their village. We saw Ali Hassan who had hatchet injuries on his neck and shoulder and was bleeding and had expired. Leaving the dead body in care of Muhammad Hassan and Karim Bux .at this time I have come to lodge report that the incitation of Razi, the accused persons committed murder of Ali Hassan because, about a month back, quarrel took place between us and Bhattis, wherein, Mithal Bhatti had died. I am complainant. Investigation may be made."

The prosecution case depended on the ocular testimony of three eye‑witnesses, namely Sain Rakhio (the complainant and deceased's sister's son); Muhammad Hassan (son of the deceased); and Karim Bux (nephew of the deceased) and the recovery of blood‑stained hatchet and blood‑stained shirt from appellant Muhammad Saleh together with motive and medical evidence. In his judgment, dated 30‑4‑1986, the trial Court did not believe the prosecution version in so far as the accused Razi was concerned and as such he was acquitted but the prosecution evidence was believed as regards the present appellants. According to the trial Court though the three eye‑witnesses were closely related and as such interested witnesses, but to quote the trial Court, "The recent trend of decisions of our Superior Courts is that it is not the interestness or the disinterestness of the witnesses but it is the truthfulness which matters" and relying upon P L D 1977 S C 557, PLD 1982 Kar. 881 and 1986 P Cr. L J 10, and after discussing the ocular testimony of the three aforesaid witnesses, reached the conclusion that the said ocular testimony was reliable and trustworthy Then he observes that ocular evidence was Dreliable and trustworthy and need not be supported or corroborated by any other evidence, there was other independent evidence to support the ocular evidence. He relied upon the medical evidence, according to which the deceased had received four hatchet injuries. He relied upon motive, which in this case was the blood‑feud and had been furnished by the interested eye‑witnesses and not by independent witnesses. Reliance was also placed on circumstantial evidence of the recovery of blood‑stained shirt and blood‑stained hatchet from applicant Muhammad Saleh. These three pieces of evidence were taken as corroboration of the ocular testimony. The trial Court also applied section 34 , P . P. C . , in so far as the two appellants are concerned, although it did not believe the prosecution evidence in so far as the implication of acquitted accused Razi was concerned. In this connection the trial Court observed as follows:‑‑

"Now I have to advert to the applicability of section 34, P.P.C as regards accused Razi. It is the prosecution case that he was present with the Lathi and had instigated others to commit the murder of deceased Ali Hassan. Accused Saleh and Sheral were armed with hatchets and there was no occasion for them to have acted at the instigation of a person who is quite aged and armed with a Lathi. He did no cause any injury to the deceased although was armed with a Lathi nor there is any such allegation against him."

Mr. Muhammad Hayat Junejo, learned counsel for the appellants, submitted that the three eye‑witnesses are very closely related to the deceased. This submission is correct as the evidence shows that complainant Sain Rakhio is the son of the deceased's sister, P.W. Muhammad Hassan is the son of the deceased and Karim Bux is the nephew of the deceased. Being so closely related to the deceased, the rule of prudence required that the ocular testimony be corroborated by other independent evidence. There can be cases where on the evidence of interested witnesses a conviction may sustainable but such cases are rare and the Court invariably looks for corroboration from independent sources and if such corroboration is not there, benefit of doubt is extended to the accused. A rare case can be visualized where no independent evidence is available. For example, an offence is committed at night in the house of the victim, where apart from close relations of the victim, no one else is present. In such a situation, where independent evidence/ witnesses may not be present /available, the evidence of the interested witnesses, if trustworthy and appearing to the trial Court to be truthful, may be considered sufficient for sustaining conviction of the accused. But where the facts show that independent evidence was available but was not produced or independent evidence brought on record was not accepted, the rule of prudence would require that he benefit of doubt be extended to the accused and he is not convicted merely on the evidence of interested witnesses.

3. As regards corroboration of interested ocular testimony by medical evidence, it was submitted by Mr. Muhammad Hayat Junejo, learned counsel for the appellants, that medical evidence in this case does not corroborate the ocular testimony about the implication of the two appellants. According to the learned counsel, at the most medical evidence shows that certain injuries were caused but such evidence cannot corroborate the ocular testimony that it was the two appellants who had caused injuries to the deceased. As regards motive, it was submitted by the learned counsel for the appellants that the parties are admittedly inimical to each other and the evidence of motive in such cases' cannot corroborate interested ocular testimony. It was further submitted on behalf of the appellants that evidence of motive had been brought on record through the three interested prosecution witnesses themselves and such motive in this case cannot be accepted as corroboration for ocular testimony involving the appellants. As regards recovery from appellant Muhammad Saleh, it was submitted that the recovery was doubtful and Mashirs were also interested. In view of the aforesaid reasons, it was submitted by Mr. Muhammad Hayat Junejo, learned counsel for the appellants, that there was no independent evidence on record which corroborated the interested ocular testimony of the three prosecution witnesses. Learned counsel had also taken me through the entire evidence on record and it was also argued on behalf of the appellants that there were contradictions in the evidence of the three prosecution witnesses and on the evidence of these three witnesses, ever if the Court was of the view that no corroboration was required, the prosecution had not established its case beyond reasonable doubt against the appellants. Another argument raised on behalf of the appellants was that the learned trial Court had disbelieved the evidence of the three prosecution witnesses as regards the case against acquitted co‑accused Razi and this reflected upon their testimony as regards the appellants.

4. Mr. Ali Bux Laghari, learned counsel appearing for the State, did not support the conviction. According to the learned counsel for the State, the evidence of the three eye‑witnesses, who were very closely related to the deceased required corroboration and motive and medical evidence did not amount to any corroboration, whereas the recovery of blood‑stained hatchet and blood‑stained shirt from appellant Mohammad Saleh was doubtful. According to the learned counsel for the State, benefit of doubt should have been given to the appellants.

5. In my view, the present was not that rare case, in which ocular testimony of the three eye‑witnesses, who were closely related to the deceased, by itself was sufficient to sustain conviction of the accused. Relationship of the three prosecution witnesses has already been mentioned earlier. As observed, complainant Sain Rakhio is the deceased's sister's son, PW Mohammad Hassan is the son of the deceased and PW Karim Bux is the nephew of the deceased. Enmity between the parties is admitted. It is not a case of enmity on some petty matter. It is case of blood‑feud. The parties were so iniminal each other that possibility of involving the other party is a criminal case could not be ruled out. Then the murder is alleged to have taken place in broad daylight at about 1.30 p.m. and it is also in the evidence of the eye‑witnesses that the incident attracted a large number of people at the scene of the incident but neither any such independent person was examined by the police during the enquiry nor any such independent person, who had reached the Wardat, was produced as a witness by the prosecution. There are also certain contradictions in the testimony of the ocular witnesses. For all these reasons rule of prudence required that for sustaining conviction of the appellants there was corroboration from independent sources of the ocular testimony implicating the appellants.

6. Medical evidence in the instant case cannot be treated as corroboration of ocular testimony implicating the accused in the offence. As rightly pointed out by the learned counsel for the appellants, such medical evidence only corroborated that part of the version given by the eye‑witnesses which related to the nature and place of injuries and not of the testimony of the prosecution eye‑witnesses that such injuries had been inflicted by the appellants.

7. As regards motive, in the facts of the instant case, this will not amount to corroboration of the prosecution version given by the eye‑witnesses. Firstly, evidence regarding motive has been given by the three eye‑witnesses, whose testimony is interested and secondly in this case motive reflects enmity of a high degree between the parties. It is a case of blood‑feud and the motive in the present case cannot amount to independent corroboration of the ocular testimony of the prosecution witnesses.

8. Coming now to the recovery of the blood‑stained hatchet and blood‑stained shirt from appellant Saleh on 29‑3‑1976 i.e. a day after the incident, it has been noticed that both the Mashirs were related to the deceased and the only Mashir of recovery, who was examined by the prosecution is closely related to the deceased. Then the police had made a search of the house of the appellant on the day of incident i.e. 28‑3‑1976 but the blood‑stained hatchet was not recovered. Then the three appellants resided in the same enclosure and recovery of the blood‑stained hatchet is actually from a place jointly possessed by the three appellants. No disinterested Mashir had been examined. Another fact, which casts doubt upon the recovery of the blood‑stained shirt from appellant Saleh, is the mention of one blood‑stained hatchet with broken handle found by the police on 28‑3‑1976 when the police visited the place of incident and which was taken by the police in their possession (Mashirnama of the scene of offence is Exh. 16). In the prosecution case before the trial Court this blood‑stained hatchet found on the scene of the incident, does not find any place. There is no explanation in the prosecution case about this blood‑stained hatchet. In the circumstances, reliance cannot be placed on the recovery of the blood‑stained hatchet and blood‑stained shirt, the evidence whereof has been given only by one interested Mashir. It may be observed that the Investigating Officer ASI Fazal Ilahi did not appear in this case, having died before the trial.

9. Reference may be made to the‑case law cited by Mr. Mohammad Hayat Junejo in support of the prosecution advanced by him in support of the present appeal. Reliance was placed on a D.B. judgment of this case in the case of Lashkari v. State P L D 1981 Kar. 1, in which reference was also made to P L D 1977 SC 557, on which reliance had been placed by the trial Court In para. II of the judgment reported in P L D 1981 Kar. 1 it was observed as follows:‑---

"It would thus be seen that the three eye‑witnesses are deeply interested and inimical to appellants Lashkari Guloo and Murad Ali. The rule in regard to corroboration of the evidence of the interested and inimical witnesses, although a rule of caution has virtually ripened into a rule of law. The Supreme Court has, on numerous occasions, stated the rule and cautioned against acceptance of such testimony without corroboration for the reason that false implication is not very rare in this country. One has no hesitation in saying that a murder in such society infuses in the mind of the family of murdered person a desire to avenge and thus a series of murder had taken place. When feelings between the parties become embittered false implication or inflation in the murder of accused very often is resorted to. It is precisely for such reason that the Courts are to be on guard and normally look for some corroboration lending an assurance to the evidence of witnesses."

In para. 14 of the same judgment it was observed as follows:‑

"The learned trying Judge was conscious of the character of these witnesses but for the purpose of sustaining a conviction he has thought it proper to use motive as corroboration No doubt in law motive can oftenly be used as corroboration but in cases of this nature motive is just a second name of enmity and in relying on such motive which is born of enmity the trying Judge followed a wrong process of appreciation of evidence. This is not one of these cases where only one side has a grievance but looking to the series murders and cases between these parties it was wrong process followed by trial Court to have used motive as corroboration in the present case.

Reliance was also placed on a case of Muhammad Afzal v. State 1983 S C M R 1, in which case, vide recovery of the gun from the accused was considered doubt-full for the reason that no disinterested and respectable person of the locality was made to join the investigation i.e. to witness recovery of the gun and the "Haveli", from where the gun was recovered, was jointly possessed by the accused and others and as such possession of the gun, according to the Supreme Court, could not be said to be exclusively that of the accused.

The case of Mooso v. State 1975 P Cr. L J 206 was cited for the proposition that as the evidence of the same eye‑witnesses was not believed in so far as the acquitted accused Razi was concerned, evidence of the same witnesses regarding implicating the two appellants should not have been considered sufficient without corroboration for sustaining their conviction.

Reliance was also placed on the case of Bagh Ali v. State PLD 1973 S C 321, where it was observed that the appraisement of the evidence of eye‑witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime and there is a background of enmity and in such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source and if such source is not available then it must be supported by some strong circumstance which would enable the Court to evercome the inherent doubt which such evidence must necessarily create.

Allah Rakha v. State 1985 S C M R 453 was also relied upon where it was observed that in a case where members of the same family were deadly enemies of each other, witnesses appearing from either side against the other were not to be, depended upon without independent corroboration.

Reference was also made to the case of Ghulam Sikandar v. Mamaraz Khan P L D 1985 SC 11, in which it was observed that where a witness was interested and also inimical and thus likely to falsely implicate one or other accused it was essential to seek an independent corroboration.

Reference was also made to the case of Ghulam Sikandar v. Mamaraz Khan P L D 1985 SC 11. in which it was observed that where a witness was interested and also inimical and thus likely to falsely implicate one or other accused it was essential to seek an independent corroboration.

The judgments cited by the learned counsel for the appellants support the proposition advanced in this appeal that in the instant case on account of deep‑rooted enmity between the parties, the evidence of the three eye‑witnesses, who were very closely related to the deceased, as observed earlier, required independent corroboration and that motive and recovery in the instant case did not provide such independent corroboration. As regards medical evidence, I have already that such evidence does not amount to corroboration of the ocular testimony implicating the appellants. On the state of evidence on record, therefore, benefit of doubt should have gone to the appellants.

10. Criminal Appeal No.102 of 1986 is allowed, judgment, dated 30‑4‑1986 convicting the two appellants in Sessions Case No. 876 of 1976 is set aside. The appellants be released forthwith, if not required in any other case.

M. Y. H. Appeal allowed.

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