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Criminal Appeal No. 54 of 1962, decided on 30th October 1962

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 19th July 1960, in Criminal Appeal No. 165 of 1959).

Granted to examine the question: "whether ocular evidence (murder case) at all required the kind of corroboration which the High Court felt it their duty to seek"‑Constitution bf Pakistan (1956), Art. 160.

Large number named by complainant‑ Motive present to include as many persons as accused as possible‑One accused at least admittedly falsely implicated‑Suspicious circum stance.

Crime cartridges recovered by boy of nine years from scene of crime immediately after escape of culprits‑Handed over to police "next day" though police had reached spot during night‑Delay unexplained‑Suspicious circumstance.

Particular gun not proved to have been recovered from particular accused ‑ Ballistic expert's evidence connecting particular cartridge with particular gun‑Valueless.

Eye‑witnesses, interested‑Exceptionally strong corroboration necessary, which is almost by itself sufficient to establish guilt.

Muhammad Shafi Senior Advocate Supreme Court (Shaukat Ali Khawaja Advocate Supreme Court with him) instructed by Muhammad Nazar Khan, Attorney for Appellant. Hamid Ali Sherwani Advocate Supreme Court instructed by Yaqub Husain Zaidi Attorney for Respondents Nos. 1 to 6.

M. Anwar Advocate‑General West Pakistan (Iftikharul Haq Khan Advocate Supreme Court with him) instructed by Ijaz Ali Attorney for Respondent No. 7.

Date of hearing: 30th .October 1962.

This appeal was brought by special leave from a judgment of the High Court of West Pakistan at Peshawar which reversed the order of convictions passed by the Additional Sessions Judge, Mardan and acquitted the six accused persons. They were charged with the murders and other offences alleged to have been committed on the evening of 9th April 1958. They are respondents 1 to 6 in this appeal.

The first five respondents are connected among themselves by ties of relationship. Respondents Mirza Ali, Sakhi and Ghani are brothers and their two sisters are married to respondents Gulab and Mir Aslam respectively. The sixth respondent Hikmat Shah is their friend. The motive for the formation of the unlawful assembly was to take revenge upon Qalandar with whom they had long‑standing enmity.

The case for the prosecution was that just after sunset on the 9th April 1958, when eight persons, namely Qalandar, Hamid Khan, Zabta Khan, Zaman Khan, Faizullah, Alam Khan, Safiullah and Daood Khan were breaking their fasts in the hujra of Wasiullah, each of these respondents being armed with fire arms, came and fired 50 or 60 shots at those who were present in the hujra. As a result of this attack Qalandar and Hamid Khan were killed and Zabta Khan, Zaman Khan, Faizullah and Aslam Khan were injured. After the assailants left the place, Wasiullah took the dead bodies in a Tonga to Lahore Police Station and lodged the first information report at about 11 p.m.

Eventually the six accused persons were placed on their trial before the Additional Sessions Judge, Mardan for offences under sections 148, 302/149 and 307/149 of the Pakistan Penal Code.

The defence of the accused persons was a plea of false impli cation out of enmity.

Seven eye‑witnesses implicated all the accused giving details. The Additional Sessions Judge, however, in convicting the accused relied on the evidence of Zabta Khan, Zaman Khan, Faizullah and Aslam Khan who had received gunshot injuries at the time of occurrence and whose presence, therefore, could not be doubt ed. He accordingly, convicted them on two counts under section 302/149, P. P. C. and sentenced each of them to transpor tation for life. He also sentenced each of them to undergo rigo rous imprisonment for a period of 7 years on each of the 4 counts under section 307/149, P. P. C. They were also convicted under section 1,48, P. P. C. and sentenced to rigorous imprisonment for one year each.

The convicted persons appealed to the High Court. The learned Judges of the High Court, however, treated the four witnesses on whom the Additional Sessions Judge had relied as interested witnesses and therefore looked for independent corro boration implicating each of the accused so as to ensure against the possibility of their names being falsely added to the list of accused persons. As, however, they did not find such corrobora tion they gave benefit of doubt to the accused persons.

The Court while granting special leave observed :‑

"The major question which arises is whether, having regard to all the circumstances of the case, the ocular evidence at all required the kind of corroboration which the learned Judges in the High Court felt it their duty to seek. The danger is evident that, by basing a conviction in such cases on some ancillary piece of evidence e.g., a blood‑stain on clothes, of which the accused may himself not be aware, safety in the dis pensation of justice is gravely prejudiced. The present case affords an opportunity for examining this general question which we find to arise in an increasingly large number of cases".

We proceed therefore to the consideration of the evidence in the case, so far as is necessary. In this case there was sufficient motive for implicating as many persons of the enemy camp as possible. Admittedly the complainant Wasiullah had included among the assailants one innocent person, namely Hassan Ali. During investigation the Police found that Hassan Ali was in judicial lock up at the time of occurrence. From the evidence of the Investigating Officer, Abdul Qadoos Khan (P. W. 20), it appears that there was some delay in sending the case‑diary to the Head Office. The High Court thought that the above circumstance explained by the other witnesses omit ted the name of Hassan Ali in their evidence. The above was no doubt a suspicious circumstance, and therefore, they possibility of omission of Hassan Ali's name in their evidence ash a result of the Police investigation cannot be ruled out.

It was the prosecution case that some of the crime cartridges which were recovered from the scene of incident were fired from the guns seized from the accused persons and that this furnished the required corroboration. It appears from the evidence of Anwarullah (P. W. 12), a boy of nine years, that he went to the hujra with his uncle Wasiullah immediately after departure of the assailants and collected 10 empty shells; five from the hujra and five from the thoroughfare. No mention of this recovery was, however, made in the first information report lodged by Wasiullah shortly after the occurrence. The belated explanation that they boy had not informed his uncle about this recovery seems too unsatisfactory to be accepted. Further according to this boy's statement, he made over the crime cartridges to the Police on, the next day though the Police had reached the scene some time during the night. This delay in handing over the crime cartridges to the Police has also not been satisfactorily explained by the prosecution.

Yet another circumstance which has not been explained on the side of the prosecution is as to what happened to the other cartridges which had been fired by these assailants. According to the witnesses at least 50 or 60 shots were fired by the assailants, but only 10 empty cartridges were allegedly recovered by the boy Anwarullah. The injuries found can be explained by a compara tively small number of shots.

There is another element in the case which creates even greater difficulty, namely the mode of seizure of the guns by the Police from some of the accused persons in this case. Mir Kamal (P. W. 18) has stated that on the day following the occurrence he found five accused persons excluding Hikmat Shah sitting at the Police Station. On enquiry he learnt from the accused that they had been charged in a murder case, and that they had come to the Police Station of their own accord, along with their fire arms. The Police then sent the accused persons to his house and they stayed with him for the night. Their arms were taken away from them. But the next day, when they appeared at the Thana, a formal proceeding was carried out, namely that three of the fire arms were shown as having been recovered from three of the accused persons. Mir Kamal said that at the same time, eight empty cartridges were recovered from the accused persons, along with a number of live cartridges. His evidence to this effect was never either challenged or refuted. It is sufficient to create a doubt (a) whether the alleged "crime cartridges" were in fact all recovered from the spot and (b) whether it is correct that a, particular gun was recovered from a particular accused person.' In consequence, the evidence of the ballistics expert connecting a particular "crime cartridge" with a particular gun becomes valueless.

The unreliability of the evidence of the boy Anwarullah affects belief in the prosecution case in another aspect as well. The plan shows that one side of the hujra is bounded by a wall which is broken in many places, so as to leave gaps. The ground on the outside of the courtyard is two feet lower than the level of the courtyard. It is conceivable that the gunmen (or a single gunman with an automatic gun) fired from outside, using the broken pieces of wall for concealment, and in this view, the exact places where the alleged "crime empties" were lying when found shortly after the occurrence assumes importance. The boy's evidence is clearly of insufficient weight to establish this part of the case in favour of the prosecution.

In the order of this Court admitting the appeal, it was observ ed that the High Court judgment had dealt with the case as one resting on interested evidence, with no reliable corroboration to ensure against the false addition of one or more names in the list of accused persons, but the following factors had not been noticed; viz :‑

(1) that the eye‑witnesses were all natural witnesses;

(2) that the results produced were commensurate with the number of persons charged, viz. six ;

(3) that there was visibility, and the trial Court had believed a number of the witnesses after seeing and hearing them; and

(4) that the feud had been dormant for 20 years.

The question was asked whether in view of these factors, corro boration was at all necessary.

On further examination, it appears that the case is not free from doubts of a general character. These are caused by (1) the false inclusion of the name of Hassan Ali at the outset, and the circumstances attending its exclusion later, (2) the weakness of the evidence to show recovery of the alleged "crime empties" and (3) the dubious manner of the arrest of five of the accused persons, and of the recovery of weapons and cartridges, both live and empties from them. When such be the case, and the main direct evidence be also that of interested persons i.e., enemies of the persons charged, it is proper to ask that the evidence in corrobo ration should be exceptionally strong, almost, if not quite, suffi cient by itself to establish the guilt of individual accused persons, beyond reasonable doubt.

Here, there was, besides the interested testimony of two eye witnesses whose presence on the spot must be accepted, viz., Zabta Khan and Zaman Khan, also the direct evidence of another injur ed witness, Faizullah, who is not in the feud, but is obliged to the family of the victims for substantial assistance rendered in a criminal case earlier. The learned Judges thought he could not be described as "disinterested". Since, in all the circumstances, he was likely to support the version put forward by his hosts and benefactors, we would prefer to say that his evidence was not of sufficient intrinsic reliability to sustain the prosecution case, by itself.

The conclusion must therefore be that the case as a whole was not free from reasonable doubt, and that the acquittal of the accused persons by the High Court was correct. We dismiss this appeal.

A. H. Appeal dismissed.

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