' SYED YAHYA ZAHID GILANI, J.--- The appellant Muhammad Amin has been convicted under section 302(b), P.P.C. Vide judgment dated 21-6-2005 of learned Additional Sessions Judge-V, Bannu, and sentenced to life imprisonment, with the direction to pay Rs,50,000 as compensation to legal heirs of Yar Muhammad deceased whose Qatl-e-Amd was allegedly committed on 29-4-2001 at 1730 hours and the case was registered on the report of his brother Naimatullah vide F.I.R. No,255 dated 29-4-2001 at Police Station Cantt. Bannu, under Sections 302/34/114, P.P.C. Wherein the convict- appellant has been charged along with his three sons.
2. The convict-appellant has filed the instant Criminal Appeal No,77 of 2005 challenging his conviction and sentence whereas Naimatullah Khan complainant has filed Criminal Revision No,31 of 2005 for enhancement of the sentence. We propose to dispose of both the appeal and the Criminal revision through this single judgment.
3. Precisely, it is averred in the prosecution case that complainant Naimatullah P.W.9/eye-witness, his brother Dost Muhammad P.W.10/eye-witness and his second brother Yar Muhammad (deceased) as well as their cousin Sher Azam (abandoned eye-witness) went to Government High School, Mamand Khel to watch cricket match, whereafter Yar Muhammad proceeded to return and he was followed by his above named two brothers and a cousin. When Yar Muhammad reached on the main road in front of the school, Muhammad Amin (convict-appellant) along with his two sons Said Amin and Khurshid, emerged with Kalashnikovs. The father directed his sons to kill Yar Muhammad and then all the three started firing targeting Yar Muhammad who got injured and fell down. The eye-witnesses allegedly watched the incident but could not resist being unarmed. When the accused fled away, they reached and saw Yar Muhammad dead. The complainant mentioned in the report that all the above named three accused killed the deceased with the consultation of Noorullah alias Lala, another son of Muhammad Amin convict-appellant and it was because' of previous animosity over a case of attempt at life.
4. It has come in evidence that one of the accused namely Said Amin has been killed after the occurrence and two accused namely Khurshid and Noorullah alias Lala are absconders. The convict-appellant Muhammad Amin is their father.
5. The conviction of the appellant is based on the ocular testimony of complainant Naimatullah and his brother Dost Muhammad, recovery of 15 empties of 7.62 bore from the scene of occurrence, one spent bullet of the same bore recovered from the wall of the shop of Wazam Khan which is in the line of firing, medical evidence in the shape of postmortem report etc, blood stained garments of the deceased, blood stained earth from the spot, and motive.
6. As far as the killing of deceased Yar Muhammad is concerned, there is no dispute over venue of occurrence and that he was killed with 7.62 bore weapon. The serious question brought forth for determination before us was the correct nomination of convict-appellant in the instant crime.
7. We have listened arguments of Mr. Sanaullah Khan Gandapur Advocate for the convict- appellant, Mr. Muhammad Karim Anjum Qasuria Advocate for the complainant and Mr. Sanaullah Shamim Gandapur; Deputy Advocate-General for the State. Record has been minutely consulted.
8. Both the eye-witnesses examined in this case namely Naimatullah P.W.9 and Dost Muhammad P.W.10 are the real brothers of deceased and as such related witnesses. First part of cross- examination of both the eye-witnesses as well as the indicated motive in the F.I.R. Refers to their being inimical towards the accused party due to the history carrying a case of attempt at life.
Therefore, both the eye-witnesses cannot be excluded from the category of interested witnesses, because interested witness has been defined to be one who has a motive for falsely implicating an accused person. This is a very old proposition available in the books of case law and for the sake of reference, the case of Nazir and another v. The State PLD 1962 SC 269 can be referred. Honourable apex Court has further held long before that testimony of an ordinary interested witness can be believed but independent corroboration of some sort is necessary for its reliance. This view has been expressed decades ago in the case of Sahib Masih v. The State 1982 SCM R 178(d). As far as the kind of corroboration is concerned, it has been guided in the case of Nazir v. The State (supra) that it does not necessarily mean word of an independent witness but anything in the circumstances which tend to satisfy Court, that a witness has spoken truth, may be sufficient and for that purpose the circumstance that number of persons named as culprits consistent with the kind of. Crime committed may be considered. In another old case of Niaz v. The State PLD 1960 SC
(Pak) 387, the principles have been propounded that in case of partisan and interested persons, when they may be relied upon without corroboration and when corroboration is necessary for their reliance and what should be the nature of corroboration. The following paragraph of this guiding and leading judgment is reproduced below for ready reference:-- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of offence the first question to be considered is whether in fact they saw the occurrence and were in position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rear occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it but if the Court finds that the numbers mentioned by the interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstances which corroborate - their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the interference that the particular accused whose case is being considered did participate in the commission of the offence."
9. We have carefully scrutinized the facts of this case and have come to the conclusion that we should not straightaway doubt the presence of eye-witnesses on the spot because it was their presence which made it possible that the report could be promptly lodged, but we feel that the complainant in this case had a tendency to enlarge the number of accused which manifestly reflects in the First Information Report as well as his Court statement. The nature of weapon used in the crime being Kalashnikov, there was hardly any necessity for the convict-appellant to command the assault and direct his two sons to fire and kill the deceased as it has been narrated.
We would, therefore, insist for independent corroboration before placing reliance on both the eyewitnesses to hold that the convict-appellant actually participated in the crime in question. Our search for independent corroborative evidence is because of the rule of prudence and to satisfy our conscience about involvement of the convict-appellant in the crime, keeping in view the established principles of safe administration of justice.
10. Recovery of empties, spent bullet and blood from the spot provide corroboration regarding venue of occurrence and the weapon used, but not specifically about the involvement of convict- appellant in the crime. When asked, it was argued before us that the occurrence took place on 29- 4-2001 and the convict-appellant was directly charged by name in the F.I.R. He then consciously went into hiding and was arrested on 4-6-2004, after more than three years abscondence, which is sufficient and independent corroboration to augment the statement of eye-witnesses. We checked the record but surprisingly we found that no effort has been made by the prosecution to prove the alleged abscondence of convict-appellant because during his trial, neither the Search Witness Said Nawaz DFC No,530 was examined as prosecution witness nor the relevant warrant and proclamations were exhibited. The said witness was examined during proceedings, under section 512, Cr.P.C. But that statement cannot serve the purpose because it was not examination of the witness during this trial nor the convict-appellant availed opportunity to cross-examine him. So, the alleged abscondence of convict-appellant is not proved according to law and this piece of evidence is not available to prosecution to corroborate the ocular testimony of P.W.9 and P.W.10.
11. It is, therefore, concluded that the uncorroborated statements of interested eye-witnesses qua the nomination of convict-appellant was not sufficient for conviction. Therefore, we do not approve the conviction of the convict-appellant by trial Court. It is further held that he is entitled to benefit of doubt and acquittal.
12. Consequently, the appeal of the convict-appellant is accepted, impugned conviction and sentence is set aside and the appellant is acquitted from the charge of Qatl-e-Amd levelled against him. He is in the judicial lock-up and shall be released forthwith if not required in any other case. Criminal. Revision No,31 of 2005 has, thus, become infructuous which is hereby dismissed.