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Petitioner: SAR DAR KHAN and 3 others VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Mamoon Kazi, Raja Afrasiab Khan, Saeeduzzaman Siddiqui Title: SAR DAR KHAN and 3 others vs THE STATE Case No.: Criminal Appeal No, 292 of 1993 Date of Judgment:1998-06-04 Reported As: 1998 SCMR 1823 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SAIDUZZAMAN SIDDIQUI, J.---Muhammad Aslam, Muhammad Akram, Sardar Khan, Muhammad Ashraf, Asmatullah and Umar Hayat were tried by the Sessions Judge, Mianwali, under sections 148/302/149, and 404, P.P.C. For forming unlawful Assembly and in pursuance of common object committing the murders of Saadullah and Noor Khan and for dishonestly misappropriating the licensed gun and a bag of cartridges belong to Noor Khan deceased. 2. The trial Court found all the six accused guilty of offences under sections 148 and 302/149, P.P.C., and convicted them accordingly. Under section 148, P.P.C., all were sentenced to 2 years R.I. And fine of Rs,2,000 each and in default of payment of fine to undergo R.I. For six months. Except Umar Hayat accused rest of the accused were awarded death penalty on two counts under section 302/149, P.P.C., with fine of Rs,10,000 each on each count and in default of payment of fine to suffer R.I. For 2 years each. Umar Hayat was sentenced to life imprisonment with fine of Rs,10,000 and in default of payment of fine to suffer R.I. 2 years. Only Muhammad Akram accused was found guilty and convicted of the offence under section 404, P.P.C., and he was awarded 2 years R.I. And fine of Rs,2,000 and in default of payment of fine to suffer R.I. For six months. Half of the fine awarded under section 302/149, P.P.C., was ordered to be paid to the legal heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C., was extended to the accused. 3. All the six convicts appealed against their conviction and sentences as aforesaid before-the Lahore High Court. A learned Division Bench of that Court allowed the appeals of Umar Hayat and Muhammad Aslam and set aside their conviction and sentences. As a result of acquittal of Umar Hayat and Muhammad Aslam in the case on all charges, the remaining four accused in the case
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were also acquitted under section 148, P.P.C. However, the conviction of remaining four accused, Sardar Khan, Muhammad Akram, Asmatullah and Muhammad Ashraf under section 302/34, P.P.C., was maintained by the High Court and accordingly, the sentences of death and awarded to them were confirmed. The conviction and sentence of Muhammad Akram accused under section 404, P.P.C., was also not interfered by the High Court. Leave was granted in the case to consider the following proposition:-- "Leave to appeal is granted to examine whether the required corroboration of the testimony of interested witnesses was available particularly so when the same evidence has led to the acquittal of two others (Umar Hayat and Aslam) implicated in the crime." 4. We have heard Mr. Asif Saeed Khan Khosa, learned counsel for the appellants. Mr. Ibrahim Satti, learned counsel for the complainant and Mr. Ch. Muhammad Akram, the learned counsel for the State. According to the F.I.R. Lodged in the case by Sultan Sikandar Khan (P.W.10) within 45 minutes of the occurrence on 25-2-1986 at Police Station City Mianwali, on the fateful day, the complainant accompanied by Saadullah Khan and Noor Khan (the two deceased in the case) had gone to attend the public meeting of Minister Maqbool Khan. The public meeting ended at about 4-30 p.m. The complainant started journey with the two deceased, Muhammad Amir and Alam Khan, on foot towards bus stand. At about 5 p.m., when they reached near Ada Larian/Bus Stand, Talagang, Saadullah Khan and Noor Khan were a few paces ahead' of the complainant, Amir and Alam Khan. They wanted to catch the bus. Noor Khan deceased was carrying his .12 bore licensed gun. At that moment from north eastern side, in front of Saadullah and Noor Khan, Sardar Khan, Umar Hayat, Asmatullah,. Muhammad Akram, Muhammad Aslam and Muhammad Ashraf appeared. Muhammad Aslam was armed with 7MM rifle while rest of the accused were armed with .12 bore guns. They raised 'Lalkara' that today they (Saadullah and Noor Khan) will not go alive as they had come to avenge the murder of their brother. The first was shot by Sardar Khan which hit Noor Khan at his head. The second fire was made by Umar Hayat which hit Saadullah Khan on the back side of his head. The third fire came from Asmatullah which also hit Saadullah. Muhammad Akram, Muhammad Ashraf and Muhammad Aslam also fired from their respective fire-arms which landed on Noor Khan. Thereafter, all the accused continued firing on Saadullah and Noor Khan. The accused also gave butt blows to Saadullah Khan. When the accused made sure that Saadullah Khan and Noor Khan were dead, they took away the licenced gun and bag containing cartridges belonging to deceased Noor Khan while fleeing from the scene of offence. The incident was witnessed by the complainant (P.W.10), Muhammad Amir (given up) and Alam Khan (P.W.11). The motive for the murder was stated to be the earlier murder of Bahadur Khan, brother of Sardar Khan and Umar Hayat, by Noor Khan deceased in 1956. It was further stated that 5/6 months before the incident, Noor Khan and others had fired at Sardar Khan and others for which a case under section 307, P.P.C., was registered against Noor Khan and to avenge this incident the accused fired at Noor Khan (deceased) but he luckily escaped and a separate case was registered about this incident too against the accused party by the deceased, Noor Khan. 4-A. Mr. Asif Saeed Khosa, the learned counsel for the appellants raised the following contentions in support of the appeal:-- (i) That the eye-witnesses produced by the prosecution were chance witnesses. Their presence at the scene of offence was not accounted for satisfactory; (ii) That the eye-witnesses were highly interested; and therefore, their testimony could not be accepted without corroboration from an unimpeachable and independent piece of evidence; (iii) That the eye-witnesses were not reliable and confidence inspiring as they made improvement in their evidence before the Court over their previous statements; (iv) That the statement of eye-witnesses having been disbelieved in respect of two acquitted accused, the same could not be safely relied upon for convicting the remaining accused in the
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case; (v) That the site plan in the case did not support the version of eyewitnesses; (vi) That the medical evidence did not support the version of eye-witnesses in the case; (vii) That the motive alleged by the prosecution against the appellant was not a live motive. (viii) That the recovery of fire-arm from the appellants was of no consequences in the absence of a positive report from ballistic expert. (ix) That the alleged recovery of the gun of the deceased Noor Khan from Muhammad Akram accused should not have been believed as in the F.I.R., it was not alleged that the gun of deceased Noor Khan was taken away by Muhammad Akram; (x) That the alleged absconsion of the accused could not be led support to the prosecution case in view of the law laid down by this Court in the case of Aminullah v. State (PLD 1976 SC 629) and Machia v. State (PLD 1976 SC 695). 5. Mr. M. Ibrahim Satti, the learned Advocate Supreme Court for the complainant, supported the judgment of High Court and raised the following contentions:-- (i) That Alam Khan (P.W.11) was an independent witness, as he was not related to the complainant. He, therefore, had no motive to involve the appellants falsely in the case; (ii) That the other eye-witnesses in the case, Sikandar Hayat (P.W.10) was related to both the parties, the deceased and the appellants, and therefore, he too could not be described as an interested witness having motive to involve the appellants falsely in the case; (iii) That Sardar Khan and Muhammad Akram did not deny their absconsion after the incident and as such the Courts below rightly considered this as a circumstance providing corroboration to the prosecution case; (iv) That the promptly lodged F.I.R. In the case which contained full account of the incident and the names of all the accused proved presence of the eye-witnesses on the spot and excluded the possibility of deliberation before lodging of the F.I.R. (v) That the motive was fully live in the case as at the time of murder of Bahadur Khan, in 1956 his brother Sardar Khan was a minor and six months before the incident Noor Khan attempted murder of accused and a night preceding the incident deceased Noor Khan was fired upon by the accused party; (vi) That the medical evidence fully corroborated the prosecution case as the number of injuries suffered by the two deceased commensurate to the number of accused in the case; (vii) That the site plan could not contradict the prosecution case as it was not a substantive piece of evidence; and (viii) That the failure on the part of police to send the gun after recovery, to ballistic expert could not affect the credibility of the prosecution case. 6. Mr. Ch. Muhammad Akram, the learned counsel for the State adopted the arguments of Mr. Ibrahim Satti and supported the judgment of the High Court. Large number of cases were cited at the bar which will be referred at the appropriate stage. 7. Before considering the above contentions on merits, it would be appropriate to state here first, some of the broad legal principles enunciated by this Court which should be kept in mind while deciding a case involving capital punishment. One such principle is that, if an interested witness claiming to be an eye-witness charges a person with the commission of an offence, the first thing which the Court has to determine is, whether he saw the occurrence and was in a position to identify the accused and secondly, whether he should be believed for convicting the offender without corroboration. If the interested witness has charged only one person with the commission of offence or has charged more than one person and the number of persons charged by him appear to be reasonable from the circumstances of the case, then in the absence of anything in the evidence which rendered it unsafe to rely on his evidence, his evidence is to be accepted
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without corroboration as substitution is a thing of rare occurrence and cannot be assumed readily and he who asserts substitution must lay foundation for it. But if the Court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case. (see Niaz v. State PLD 1960 SC 387). The next question arises, in what manner the corroboration to the testimony of the interested witness is to be sought by the Courts before relying on it for conviction. The corroboration to the testimony of an interested witness need not always be from an independent witness supporting the story put forward by the interested witness. Corroboration may be sought from any circumstance in the case which would satisfy the mind of the Court that the witness has spoken the truth. What would be these circumstances, is not possible to lay down with precision as these would vary from case to case according to the facts and circumstances of each case. Corroboration in the case of an interested witness need not be of the same probative force as in the case of an accomplice (see Nazir v. State. PLD 1962 SC 269). 8. An 'interested witness' in a criminal case is one, who has motive to involve the accused falsely in the case. Therefore, mere friendly relation or relationship of the witness with the deceased or complainant party is no ground to discard his evidence describing him as an interested witness (see Iqbal alias Bhala v. State, 1994 SCM R 1). 9. The maxim "Falsus in uno falsus in omnibus" has not been accepted by the superior Courts in Pakistan as having universal application. Therefore, it does not, necessarily, follow that where the Court does not accept the evidence of a witness against some of the accused in a case, the Court cannot accept his evidence against the other accused. The Court often sifts the grain from the chaff while accepting the evidence of a witness against some of the accused in a case and at the same time not relying on his version against other accused in the case (see Muhammad Ahmed v. State 1997 SCM R 89 and Khairu v. State 1981 SCM R 1176). 10. Having stated some of the broad principles application to the appreciation of evidence in criminal cases, we now proceed to examine the contentions raised in the above appeal, on merits. 11. The first contention of Mr. Asif Saeed Khosa, the learned counsel for the appellants, is that the two prosecution witnesses produced in the case, were chance witnesses, and therefore, their presence at the spot was highly doubtful. The learned counsel contended that Sultan Sikandar Khan (P.W.10) was a resident of Wanda Qataliwala Dakhali Abbakhel, while Alam Khan (P.W.11) resided at Madi Khelanwala, Dakhli Moosakhel, and therefore, their presence at the scene of offence alongwith the two deceased who were resident of different areas, at one and the same time was unnatural and open to serious doubts. The argument of the learned counsel has not impressed us. The incident had taken place at the bus stand which was a public place. In such a case even a passerby may give evidence who happened to be present at the time of the incident and his evidence could not be discarded being a chance witness. In the case before us, the two witnesses and the two deceased had gone to attend the public meeting of a Minister, Maqbool Khan and the incident took place while they were returning together after attending the said public meeting to catch buses for their homes from the bus stand. It was not suggested in the cross-examination of the two eyewitnesses that there was no public meeting of the Minister, Maqbool Khan on that date. Besides, the two eye-witnesses in the case, the Investigating Officer Muhammad Ashiq (P.W.14) in his statement claimed that he was also on duty in the said public meeting on that day and his statement was not challenged in cross-examination. Therefore, there was ample evidence on record to show that on that day a public meeting was addressed by the Minister. The learned counsel for the appellants tried to show from the cross-examination of the two eyewitnesses that their presence in the public meeting was doubtful as they admitted that the Minister Maqbool Khan did not belong to their party and they were unable to state what the Minister said in that meeting. The fact that the two eye-witnesses did not belong to the party of the Minister, who addressed the
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public meeting, is not sufficient to prove that they did not attend the meeting. Similarly, the fact that the two eye-witnesses were unable to state what the Minister said in the public meeting, did not necessarily disproved their presence in the said meeting. It is not necessary that the public meeting addressed by a Minister belonging to a particular party is attended by members of that party alone. The public meetings are open to public-at-large and are not restricted to the members of the party which holds the meeting. The people attend public meetings for variety of reasons. Some may even go to attend a public meeting as a pastime. It is also not necessary that a person attending the public meeting must remember what was said or transpired in the public meeting. Apart from it, in the present case the public meeting was held in February 1986 while the witnesses were examined in Court more than three years after the meeting. In these circumstances, they could not be expected remember what the Minister had said in that meeting. We are, therefore, of the view that the two eye-witnesses duly accounted for their presence on the spot and the Courts below rightly believed their presence on the scene of offence at the time of incident. 12. Even otherwise, the F.I.R. Was lodged in the case within 45 minutes of the occurrence and the names of all the accused and the witnesses were given in the F.I.R. According to appellants own showing the two eye-witnesses were resident of different places and if they were to be called from their respective residences after the occurrence, it was not possible to lodge the F.I.R. Within 45 minutes of the occurrence. Therefore, lodging of the F.I.R., so promptly and appearance of the names of the witnesses therein, do support the inference that they were present at the spot. To overcome this difficulty, the learned counsel argued that the time for registration of F.I.R. Was deliberately changed and not correctly recorded by the police. To support his contention, the learned counsel for the appellants argued that neither F.I.R. Number nor time of occurrence, nor the names of eye-witnesses were mentioned in the inquest report prepared by the police officer at the spot. The Investigating Officer in his statement categorically stated that he was entrusted the case file in the evening and he immediately proceeded to the spot. He prepared the injury statements and inquest reports of the two bodies at the same time. No doubt in his cross-examination, P.W.14 admitted that time of occurrence and F.I.R., number were not mentioned in the inquest report but denied the suggestion that it was so because the F.I.R. Was not registered by that time. The learned counsel for the complainant rightly pointed out that it was' just an omission on the part of the police officer who prepared the inquest report and was not a mala fide action as in the injury statements of the two deceased which were prepared simultaneously, the F.I.R., number was very much mentioned. We, therefore, find no force in the contention of the learned counsel for the appellants that the two eye-witnesses were not present on the spot at the time of incident and that in order to prove their presence, the police altered the actual time of recording of the F.I.R. And falsely entered it as 5-45 p.m. 13. The next contention of Mr. Asif Saeed Khosa, the learned counsel for the appellants, is that the eye-witnesses were highly interested and in view of the admitted enmity their evidence could not be accepted without corroboration from some unimpeachable and independent piece of evidence in the case. 14. We have already stated earlier the broad principles for appreciation of evidence of an interested witness in a criminal case, and therefore, these need not be repeated here. We have also found that the presence of the two eyewitnesses examined in the case, at the time of incident, has been satisfactorily established. The incident had taken place at 5 p.m., on 25-2-1986 at the bus stand, a public place, and the accused were well-known to the witnesses. At the time of incident, the eye-witnesses were at a very short distance from the I deceased. In these circumstances, the eye-witnesses were in a perfect position not only to watch the whole incident but also to identify the accused. The two deceased in the case suffered 9 fire-arm injuries (entry wounds) besides 4
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blunt injuries which commensurate with the number of accused in the case, six in number. Therefore, the eye-witnesses had not attempted to exaggerate the number of accused in the case. The learned counsel for the appellant has, however, very vehemently contended that the eye- witnesses were highly interested because of the deep rooted enmity between the parties. P.W.10 Sultan Sikandar was not only related to the two deceased but was also related to the accused party as would appear from his following statement before the Court:-- "I know the accused present in Court. Umar Hayat and Sardar Khan accused are real brothers. Asmat Ullah accused is the son of Umar Hayat accused. Ali Khan father of Muhammad Aslam and Muhammad Akram accused is a real maternal uncle of Umar Hayat and Sardar Khan accused. Muhammad Ashraf accused is the brother's son of Muhammad Aslam and Muhammad Akram accused. Mehr Khatun, my mother, was a real sister of Hayat Bibi, mother of Ali Khan above." ' The above relationship Sultan Sikandar Khan (P.W.10) with the accused was admitted by Umar Hayat, Muhammad Akram, Muhammad Aslam, Sardar Khan, Muhammad Ashraf and Asmatullah accused, in their statements under section 342, Cr.P.C. ' In cross-examination P.W.10 denied that he got registered a case against Umar Hayat accused in 1947 under section 307, P.P.C. He also denied that Bahadur Khan, brother of Umar Hayat accused, was a witness in a case in which he (P.W.10) was accused of causing injuries to Ata Muhammad Khan of Wandha Durraniwala, Mauza Abbakhel, in 1953. He also denied that he was an accused with others in the case registered under section 307, P.P.C., in 1953 for firing at Umar Hayat's brother Bahadur Khan. He, however, admitted that his son Khan Amir was also an accused with Noor Khan in a case under section 307, P.P.C., in which allegation of firing at Umar Hayat was made 5/6 months before the incident. He, however, denied that any allegation of firing was made in that case against his son Khan Amir. The witness was subject to searching and lengthy cross-examination but nothing substantial could be brought on record to establish direct enmity between the witness and the accused except that in one of the cases registered by the accused party against Noor Khan deceased, his son was also nominated as an accused with him. Apart from it, nothing worthwhile could be brought on record to discredit the testimony of P.W.10. Keeping in view the direct and circumstantial evidence established beyond doubt, the presence of P.W.10 at the spot, at the time of occurrence, his ability to watch the incident and identify the accused, absence of any direct enmity with the accused and his relationship with the deceased and the accused, we do not find anything in the evidence of P.W.10 which rendered his testimony unsafe for reliance in the case. We are, therefore, of the view that the two Courts below rightly considered the evidence of P.W.10 as confidence inspiring. 15. In so far the evidence of the other eye-witnesses, Alam Khan (P.W.11) in the case is concerned, nothing could be brought on record in his cross-examination to establish that he was related to the deceased or had any motive to involve the accused in the case falsely. The suggestion given to this witness towards the end of his cross-examination in this regard was denied as follows:- "It is incorrect that I have deposed falsely about recoveries from Muhammad Ashraf and Asmat Ullah accused as also about the recoveries from the spot because of relationship with the deceased and enmity with the accused. It is also incorrect that I was neither in Mianwali on the day of occurrence nor witnessed the incident." ' The explanation given by P.W.11 for his presence at the scene of offence was plausible and has been accepted by the two Courts below. We could not be persuaded to take a contrary view. P.W.11 fully supported the prosecution cases besides corroborating the material points of the statement of P.W.10. The learned counsel for the complainant rightly described him as an independent witness having no motives to involve the accused falsely in the case. 16. Mr. Asif Khosa next contended that the motive alleged into case against the accused was not a live motive as the parties lived in peace for about 3 decades, after the murder of Bahadur Khan in
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1956. The contention of the learned counsel does not appear to be correct. Sardar Khan, brother of Bahadur Khan, had given his age in 1989 as 40 years. Therefore, at the time Bahadur Khan was murdered, he was only about 7 years of age. The possibility that Sardar Khan nursed the grudge against the deceased Noor Khan for the murder of his brother Bahadur Khan, could not be ruled out totally. Apart for it, 5/6 months before the incident, Noor Khan had allegedly fired at Sardar Khan for which a case under section 307, P.P.C. Was registered against the deceased and to avenge this incident a day before the occurrence Sardar Khan etc. Fired at Noor Khan deceased for which a case under section 307, P.P.C. Was registered against Sardar Khan and others at the instance of Noor Khan deceased. It is, therefore, quite clear that motive alleged against the accused was still alive when the incident occurred and it corroborated the ocular testimony in the case. 17. The learned counsel for the appellants next argued that the medical evidence in the case contradicted the ocular testimony. It is contended that the bullet injury on the person of Noor Khan deceased could not be explained in view of acquittal of Muhammad Aslam in the case who alone was said to be armed with 7MM rifle. It is further contended by the learned counsel that Dr. Sher Anwar Khan…
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