1. MUHAMMAD AFZAL ZULLAH, J.-Judgment dated 31-12-1976 of th Lahore High Court, in criminal appeal No, 485/76 has been brought under A challenge through this appeal on grant of special leave for reappraisal of the evidence.
2. ' According to the prosecution, Iqbal deceased was sitting on a cot in his dhari in the company of his wife Mt. Mariam Bibi P. W. (complainant) and her maternal uncle Mahabat P. W. When Khushi Muhammad (since dead) real brother of Iqbal deceased and Manzoor accused (present appellant), both armed with hatchets emerged from behind the dhari and started giving him blows with their weapons, which resulted in the victim's death.
3. ' The motive alleged only against Khushi Muhammad accused was that Farid his father had inherited six kanals of land from an issueless brother. This land was then sold by Farid to one son namely Iqbal deceased for Rs, 1,000. After the death of Farid, about a year prior to the occurrence, Khushi Muhammad accused demanded a share for himself from this land from Iqbal who refused to oblige him. This led, as alleged by the prosecution, to the premeditated attack by Khushi Muhammad with the help of his friend Manzoor Ahmad appellant. At the trial, ocular evidence was led from the prosecution side in the statement of Mst. Mariam Bibi complainant and her maternal uncle Mahabat. It may be stated here that Mst. Mariam Bibi had died before the trial in the Sessions Court. Her statement made before the Committing Magistrate was transferred and acted upon under section 33 of the Evidence Act. Evidence was also led of wajtakkar witnesses, namely, Noor Muhammad and Nausher. None of them is related to either party. However, it is an admitted position that both of these P. Ws. Resoled from their previous statements. Nausher having been declared hostile was permitted to be cross-examined by the prosecution. Noor Muhammad also resoled but the formality of cross-examination by the Prosecutor was not gone through in this behalf. Hidayat P. W. Another maternal uncle of the complainant who was a formal witness of the identity of the dead body also made (under cross-examination) concessional statement in favour of the accused. Evidence regarding recovery of the weapon of offence and wearing apparel of both the accused together with the report showing that they were stained with human-blood, was led from the prosecution side.
4. ' In their statements under section 342, Cr. P. C. Both the accused denied their participation in the occurrence. They also denied the recovery and attributed false implication, to enmity. Learned trial Judge held both the accused guilty and convicting them under section 302/34, P. P. C. Awarded sentence of death and fine to each of them.
5. ' On appeal a Division Bench of the High Court upheld the conviction and sentence awarded to Manzoor appellant. Khushi Muhammad accused had died during the pendency of his appeal in the High Court which was held to have abated. The sentence of fine awarded against him was, however, remitted on account of his (in reality his successors) weak financial position. The learned Judges of the High Court upheld the conviction of Manzoor appellant mainly, on the basis of testimony of Mst. Mariam Bibi, who on face, had no motive to falsely implicate him. Other attending circumstances available in the evidence including those in the statement of the so-called won over witnesses were also noticed for reaching the finding that his guilt bad been established beyond any doubt.
6. The following submissions made by the learned counsel for the convicting were noted for grant of leave to appeal :- "That the alleged motive attributed to the principal accused for the murder of the deceased was not proved to the satisfaction of the High Court. Mst. Mariam Bibi in her evidence before the Committing agistrate deposed to it Even otherwise there was absolutely no motive attributed to Manzoor petitioner for the murder. It is, therefore, argued that this false motive attributed to the accused for the murder reacts strongly against the entire prosecution case.
7. ' It is also pointed out that in the opinion of the High Court the recovery of the blood-stained hatchet and blood-stained clothes from Manzoor petitioner was not at all substantiated and had, therefore, refused to rely on it.
8. ' Moreover, the statement of Mahabat, P. W. Made before the Committing Magistrate was neither transferred nor could be read as a substantive piece of evidence at the trial in the Sessions Court and, therefore, High Court acted illegally in relying on it."
9. ' Learned counsel for the appellant has reiterated the arguments earlier advanced and reproduced above. With his help, we have gone through the evidence.
10. ' The direct ocular account in this case was furnished by Mst. Marian Bibi and her mother's brother Mahabat, P. W. The prosecution examined two more witnesses, namely, Noor Muhammad and Nausher to support the said account in an indirect manner through what is commonly known as wajtakkar evidence. They were, as it appears from their previous statements, expected to state that they were proceeding towards the house of the deceased when Khushi Muhammad accused (now deceased) and Manzoor appellant were seen running away from the spot with blood-stained hatchets in their hands while their clothes were also blood-stained and further that these two witnesses on encounter were told by the running culprits that they had committed the crime.
11. However, at the trial both these wajtakkar witnesses resiled and made conflicting and contradictory statements. The High Court held that they had done so in order to favour the accused, therefore, it did not rely upon them. Similarly the recoveries of blood-stained hatchets and clothes at the instance of the two accused were not relied upon because Noor Muhammad afore-mentioned witness failed to support the prosecution in this behalf.
12. Although it cannot be held as a rule that whenever a prosecution witness is shown to have resiled from his previous statement, he is necessarily telling a lie because on proper scrutiny the latest statement on oath at the trial might be found to be the true statement, it will not be possible to place implicit reliance on a witness who makes one statement in examination-in chief and a contradictory statement under cross-examination particularl when it is discovered that he has done so for a motive other than telling the truth. In the latter category of cases it might also be possible but very rarely, to accept a part of the statement made at the trial when it finds support from other satisfactory evidence or circumstance.
13. ' The scrutiny in this case of the statements made by Noor Muhammad and Nausher has not led to any conclusion different from one reached by the High Court, therefore, the wajtakkar and recovery evidence would have to be kept out of consideration.
14. ' Mahabat, P. W. According to Mst. Mariam Bibi, P. W. Was present in the courtyard of the dhari of the deceased when the latter was attacked and thus this witness, in so far as the prosecution case is concerned, was to furnish an important piece of evidence. He, however, stated that when he and Mst. Mariam Bibi, while proceeding towards their village, were at a distance of two kilas from the spot, they heard the alarm and, thereafter, saw two persons (running away) who could not be identified by him. Thus, he also resiled from the stand taken by him before the Committing Magistrate ; where he had claimed to have seen the entire occurrence while being present in the house of the deceased. Under cross-examination this witness admitted strong, long standing enmity, involving murder and attempted murder, with the deceased and his brother, as also their father. He also admitted that deceased himself was a history-sheeter and that he had so many other enemies, with the further assertion that in one case he absconded two or three years prior to the occurrence during which period he (deceased) committed robberies-the indirect suggestion being that some of those enemies killed the deceased at a time when no one else was present in his dhari.
15. ' The learned Judges of the Division Bench in the High Court rightly excluded the statement of Mahabat as an eye-witness.. His previous statement before the Committing Magistrate, as stated, was not transferred to the Sessions Court, under section 33 of the Evidence Act, nor was it otherwise treated as direct evidence furnishing ocular account. On the other hand, complete reliance was placed on the statement of Mst. Mariam Bibi with the observation that it stood corroborated by what Mahabat had stated before the Committing Magistrate.
16. ' Learned counsel for the appellant, as noted earlier, vehemently argued that the testimony of Mst.
17. Mariam Bibi in so far as it related to the motive having been rejected by the High Court, it was held to be a case in which the motive had not been established. He relied on Habibullah and others v.
18. The State to contend further that the afore-mentioned circumstance would react on the remaining testimony of Mst. Mariam Bibi which should not have been accepted without corroboration.. And because Mahabat's statement before the Committing Magistrate had not been transferred as evidence at the trial, therefore, the same could not be treated as one of any direct value nor could it furnish corroboratory support to the testimony of Mst. Mariam Bibi.
19. ' In addition to the case relied upon by the learned counsel several other pronouncements of this Court have been noticed. They are in Atta Muhammad v. The State , The State v. Rab Nawaz and another , Abdur Rashid v. Umid Ali and others , Ahmad Nisar v. The State , Misri Khan v. Kala Khan and others , Mumtazuddin v. The State , Muhammad-Sadiq v. Muhammad Sarwar and others , Khan Bahadur v. Muhammad Aslam and A.Hmad v. The State . Apart from these cases there are many reported and unreported judgments wherein on the failure of the motive asserted by the prosecution, benefit was given to the accused on a capital charge, in the matter of death sentence.1 2 3 4 5 6 7 8 9 10 Apart from the cases relating to the reduction of sentence on failure of the prosecution to substantiate an alleged motive ; it seems as if there is no uniformity of approach regarding the consequences of failure of the motive on the credibility of the evidence. It appears to be so because the question depends upon the facts of each case. Besides what was observed in the case of Habibullah a fore noted there is a line of cases showing that motive is a matter of speculation and does not constitute necessary ingredients of offence, therefore, the failure of motive would not affect the authenticity of the prosecution case. Another line of cases assumes that motive is not only relevant but also often helpful to the investigating agency as well as the Court ; yet in another set of cases it is observed that absence or failure of prosecution to prove a motive could not adversely affect the testimony of eye-witnesses if they are otherwise reliable ; and that, it gives support to the ocular evidence. Amongst others by removal of lurking suspicion which is necessary for the satisfaction of the judicial conscience. In the light of the afore- mentioned different lines of thought in the facts and circumstances of each case, sometimes failure of motive was also found to have reacted on manner of appreciation of deposition containing the same. But in other cases this circumstance was not considered enough to make any dent in the prosecution case in so far as the question of guilt or otherwise, of the accused is concerned.
20. ' In matter of sentence also although there seems to be fairly established practice : that failure of motive asserted by the prosecution reacts on the question of sentence, so as to reduce the same (on the assumption that crime might have been committed on account of such a motive which was relevant qua the accused to earn reduction of sentence) yet, in some exceptional cases, the failure of motive simplicity was not considered as mitigating circumstance ; because of other circumstances indicating that, notwithstanding the failure of the prosecution to establish the motive asserted by it, the crime was not committed on account of a laudable or any such motive due to which sentence could be reduced.
21. In this case the mere fact that Mst. Mariam Bibi failed to establish through documentary evidence that the land given to the deceased by his father in addition to his share was mutated in the name of the deceased nor was it shown in the records, to be in his cultivating possession, would not react on the testimony of Mst. Mariam Bibi in so far as the actual occurrence is concerned. Khushi Muhammad, if, he was not motivated by the land in question could still commit the crime on account of motive which was not known to the widow of the deceased. It would be so also with regard to her testimony relating to Manzoor appellant. True, he had no direct motive against Iqbal deceased and if at all it could be, as suggested by the prosecution, that he was helping his friend Khushi Muhammad. However, there is another possibility. Although evidence has not come on the file, yet both of them might have been motivated by something common to both on account of which they acted conjointly, as they allegedly did. In the circumstances of this case, therefore, it is not possible to agree with the learned counsel for the appellant that Mst. Mariam Bibi's testimony should be rejected either on the ground that the motive asserted by her has not been proved or that this circumstance weakened her testimony to such extent that in order to rely, upon the same, a strong independent corroboration should be insisted upon.
22. In other words the mere failure of motive, asserted by this witness, if she is otherwise truthful, would not react on either her testimony, the prosecution case as a whole, except that as pointed out earlier it would have effect on the question of sentence, if the appellant is found guilty. In other words Mst. Mariam Bibi's statement could in this case despite the failure of motive be made the sole basis for conviction, if of course, it could be otherwise accepted as enough. And for this last reason the matter would not end here.
23. ' It appears from the statement of Mst. Mariam Bibi that she very well knew Manzoor appellant prior to the murder of her husband. Both Manzoor appellant and Mst. Mariam Bibi belonged to the same village. She was questioned in cross-examination in this behalf and her answer was in the affirmative. Next she was asked about Yasin, her brother, as to whether he was prosecuted in a case under section 307, P. P.. C. And further that Manzoor appellant had appeared as a witness against him. She tried to avoid the implication by professing ignorance about the first part of the assertion of the defence. It is not possible to believe that she had forgotten whether her brother was prosecuted for an offence under section 307, P. P. C. The defence was able to elicit from another important prosecution witness the information that Yasin was in fact involved in an attempted murder case and further that Manzoor appellant had appeared as a witness against him. It is admitted position that Khushi Muhammad deceased accused was a friend of Manzoor appellant. It is also established from reliable evidence that the maternal uncles of Mst. Mariam Bibi were deadly enemies of Khushi Muhammad accused. It cannot be safely presumed that Mst.
24. Mariam Bibi had no against him. For this reason alone, her testimony, in the circumstances of the case, would require corroboration before it could be safely relied upon.
25. ' The recoveries and motive having been excluded by the learned Judge of the High Court, corroboration was sought from a part of the statement of Mahabat (P. W.) made before the Committing Magistrate he had, however, resoled at the trial. Learned counsel for the appellant argued that the said statement before the Committing Magistrate had not been transferred as evidence before the trial Court in accordance with law ; but, without going into this question, as it would involve a factual inquiry with regard to transfer of statement, it would be possible to decide the question of corroboration on other material available on record. As noticed above Mst. Mariam Bibi could not be safely relied upon without cogent supporting material because of her enmity against Manzoor appellant, on account of the previous attempted murder case of her real brother.
26. The other eye-witness in this case, namely, Mahabat whose statement before the Committing Magistrate, has been relied upon is her real maternal uncle. The relationship of both of them inter se is so close that it would be possible to hold that if Mahabat would have made a deposition at the trial as an eye-witness supporting the prosecution, the said deposition would also have required similar material support from independent circumstances as is required for Mst. Mariam Bibi's testimony. That being so, even if, his statement before the Committing Magistrate could have been read as evidence at the trial, it would not have been of any Substantial use of the prosecution in so far as the afore-noted question of corroboration is concerned. That being so in these circumstances, there would be no alternative except to extend benefit of doubt to the appellant ad to acquit him. This appeal is accordingly allowed. His conviction and sentence are set aside. He shall be set at liberty forthwith if not required in any other matter. PLD 1969 SC 127 1968 SCMR 502 PLD 1974 SC 87 PLD 1975 SC 227 1977 SCMR 175 PLD 1977 SC 462 PLD 1978 SC 114 1979 SCM R 214 1981 SCMR 54 1982 SCM R 781 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.