1. The appellant Khushi Muhammad has preferred this appeal from the judgment of the First Additional Sessions Judge, Khairpur (Mr. Khadim Hussain Junejo), dated 31st August, 1981 whereby the learned Judge has convicted him under section 307, P. P. C. And sentenced him to R. I. For three years and fine of Rs, 1,000 or in default R.
1. For six months.
2. The factual background of the case is to the following effect. On 30th March, 1980 the complainant Muhammad Hanif and his brother Abdul Sattar who do Kabari business in Khairpur Town left their house in the morning for usual business hawking. They took the push-cart with them. At about 8-15 a. m. They reached the saw-mill of Naboo Shaikh on Dabar road when they confronted the accused Khushi Muhammad who came from opposite direction. Drawing a pistoi from under his shirt, the accused fired shots at Abdul Sattar hitting him on his left shoulder. The complainant made a bold of himself to go forward and captured the accused. Ahmed Ali shah and Bashir Ahmed who were amongst those attracted on commotion assisted the complainant in overpowering the accused. Then the complainant with the help of aforesaid witnesses took the accused as well as his injured brother to the Police Station and lodged F. I. R. The accused alonewith the pistol and cartridges secured from-him were also delivered to the police. As stated in F. I. R. The motive attributed to the accused is that he was annoyed over the marriage of his niece Mst. Akbari with Abdul Sattar, the complainant's brother. The F. I. R. Further shows that two months before the occurrence Mst. Akbari's father took away his daughter on the pretext of temporary visit to her relations but thereafter she did not return to her husband and instead her father instituted a case of abduction against the said Abdul Sattar and his relations including the complainant. The complainant's party was also dragged in civil litigation. These cases were still pending when the accused caused the injuries to Abdul Sattar with intention to kill him.
3. The S. H. O. Abdul Jabbar who was holding the charge of Town Police Station Khairpur recorded the F. I. R. (Exh. 7) at 8-45 a. m. He prepared the memo of injuries found by him on the person of Abdul Sattar (Exh. 10) and referred him to hospital Khairpur for examination and treatment. He placed the accused under arrest and took into his possession the pistol and cartridges alleged to have been recovered from accused's possession, under the memo. (Exh. 11). The mashirs in whose presence the accused's arrest was made and the pistol and cartridges were secured, were Nazeer Ahmed and Manzoor Hussain. The S.H.O. Registered a separate case against the accused in respect of the recovery of unlicensed pistol and cartridges from his possession. He also recorded the statements of Ahmed Ali Shah and Bashir Ahmed. The S. H.O. Then visited the place of occurrence in presence of aforesaid mash irs and prepared memo. (Exh. 12). He then went to the hospital and recorded the statement of Abdul Sattar. On 15th April, 1980 he sent up the accused to stand his trial in the Court.
4. Dr. Abdul Razak who had examined the injuries of Abdul Sattar, found the following injuries on his person :-- "Multiple about 80 gunshot wounds of entrance }" in diameter, skin deep, muscle deep over the upper part of the chest and over shoulder girdle left side."
5. He certified the above injuries to be simple in nature and caused by fire-arm. The presence of injuries on the person of Abdul Sattar is not disputed by the accused. Accordingly there is no doubt that Abdul Sattar had sustained fire-arm injuries.
6. The next point for determination is whether accused had caused the said injuries to Abdul Sattar.
7. On this point the prosecution case rests on ocular evidence, apprehension of the accused at the spot and evidence of motive. It would appear that the ocular evidence as well as the evidence with regard to motive is furnished by the complainant Muhammad Hanif. (P. W. 1) and his brother Abdul Sattar (P. W. 2). They have made consistent statements that on the day of incident both of them left their house with their push-cart for doing hawking business. Whent they reached the saw mill of Naboo Shaikh, the accused Khushi Muhammad appeared from the opposite direction and drawing a pistol from under his shirt fired at Abdul Sattar from a distance of a few paces. Abdul Sattar was hit on his left shoulder. According to them the accused was apprehended at the spot by the complainant with the assistance of Ahmed All Shah and Bashir Ahmed, who were attracted on the commotion. As regards the motive their evidence shows that Abdul Sattar's marriage with the niece of the accused was the cause of the accused's annoyance with P. W. Ahmed Ali Shah who was alleged to have assisted the complainant in overpowering the accused and ultimately taking him to the Police Station was dropped as he was unwilling to support the prosecution case.
8. It was contended by the learned counsel for the accused that the evidence of above two brothers is highly tainted and hence utterly unreliable. He submitted that such evidence cannot be made the basis for. Conviction in absence of independent corroboration which is absolutely lacking. It was further submitted by the learned counsel that although occurrence took place at day time in the Bazar just before the eyes of scores of people and in fact many people had actually turned up at the vardat, yet not a single independent witness has been produced in evidence and even Ahmed Ali Shah an uninterested witness who assisted the complainant in overpowering the accused has not been examined as he was unprepared to give evidence in favour of the prosecution. In support of his contentions the learned counsel has placed reliance on Muhammad Iqbal and another v. The State wherein it was held :- ..... ...The fact that no independent witness has been produced in support of the prosecution 1 case, by itself casts a doubt on the prosecution case."
9. The other case cited by the learned counsel for the accused is of Hazoor Bux v. Waddan and three others , in which it was observed :-1 2 "Therefore, we agree with the view of the learned Judges that he was an inimical witness whose evidence cannot be accepted without corroboration."
10. There is no denying of the fact that the complainant Muhammad Hanif and injured Abdul Sattar are not only brothers inter se, but also the accused has serious differences with them over the marriage of his niece. There is also no dispute with the dictum laid down in the above SupremelA Court authority that the evidence of an inimical witness is unacceptable without corroboration. The question arises if in the light of abov authority the evidence of the complainant and his injured brother should not be accepted in absence of independent corroboration. In my opinion the evidence laid before the Court is to be judged in the context of facts and circumstances of each particular case. As the facts and circumstances vary from case to case, it is difficult to evolve a uniform formula for assessm ent of the evidence. With a view to determine the truthfulness of a witness, deep probing of his evidence would be necessary. His veracity largely depends upon the worth and merit of his evidence and not on the basis of his relations with the accused. In this connection reference may be made to the case of Muhammad lqbal referred to above wherein it is observed :-- "Even if the witnesses are ostensibly unconnected with the deceased, it is not necessary that they are witnesses of, truth. In fact the acid test of the veracity of the witness is the intrinsic worth of the statement made by him."
11. A witness may have unsatisfactory relations with the accused, but that by itself is no reason to hold him to have spoken untruths and half-truths. In normal course every witness is regarded as a man of conscience, who cannot be expected to indulge in making false accusations, no matter what his relations may be with the accused. In other words the evidence of every witness is presumed to be dictated by his conscience, unless the presumption is rebutted by a positive evidence showing that the witness has given evidence under some influence such as that of hostility towards the accused or such other consideration. While evaluating the evidence of an interested witness all that is needed is that the Court should be on guard so that before accepting or rejecting the evidence of such witness, it should be fully convinced about the character of the witness and the truth or falsity of the evidence he has given. The Court should not necessarily reject the evidence of an interested witness. It may accept the evidence of such witness with or without corroboration depending upon the facts and circumstances of the case and its own satisfaction.
12. In the instant case the relations between the parties are, of course, far from satisfactory. The root cause of their animosity is the accused's disapproval of Abdul Sattar's marriage with his niece. So, it is the accused who has grievance against the complainant's party. It cannot be believed that on one hand the complainant's brother would marry a girl of the accused's party without their consent and on the other hand the accused would be involved in a false case. On the contrary it looks more probable that the accused had caused the injuries to Abdul Satter just to avenge the disgrace he had brought to the accused's family. Since no other bone of contention exists between the parties apart from the aforesaid marriage it is simply incredible that complainant and his brother would, in place of real culprit, falsely substitute the accused who after the said marriage has come closer to them and in a way has become father-in-law of Abdul Sattar. Accordingly the evidence of the two brothers which appears to be true cannot be rejected on the ground of the above matrimonial dispute between the parties.
13. Accordingly the motive is proved from the evidence of complainant and his brother that it was the accused who resorted to violence to quench c his thirst for revenge. 'it fully supports the ocular evidence inasmuch as that the accused caused injuries to Abdul Sattar. The learned trial Judge has correctly observed that the evidence of motive gets further boost from the accused's own shifting stands. From the questions put to the witnesses in cross-examination it has become amply clear that the dispute does exist between the accused on one hand and complainant's party on the other over the marriage of complainant's brother with the niece of the accused.
14. There is no doubt that no independent witness has been examined in support of the prosecution case. It is also true that a large number of people had turned up at the vardat and some of them had even assisted the complainant in overpowering the accused and taking him to the Police Station. It is also admitted that one independent witness Ahmed Ali Shah who was cited as prosecution witness was dropped in view of his unwillingness to support the case and other witness namely mashir Nazeer Ahmed has not supported the prosecution case. In fact this is not a new phenomenon in this part of the country. It has been the common experience of the superior Courts that independent witnesses are generally not available to the prosecution to prove their case. In course of investigation even the police have to content themselves with the evidence of the persons who are connected with the aggrieved party in one way or the other. The reasons for such a situation are not far to seek. It has been observed that tendency has developed among the people to keep themselves aloof from the affairs of others, particularly those culminating into commission of offences. Whenever any such occurrence takes place the people near at hand instead of coming to the rescue of the victims hastily depart from that place obviously to avoid being involved as witness in the case. They dislike being called as witness firstly because they do not want to take the risk of incurring animosity of the accused and secondly they are unwilling to undergo humiliation and harrassm ent first at the hands of police and then in the Courts. The third reason of their indifference appears to be that they lack the sense of moral responsibility as a good citizen and religious duty as a good Muslim. On such occasions they are required to render as much assistance as is needed by the victims of the crime and subsequently make themselves available for evidence in Court so that justice is done to the parties concerned. The present case cannot be exception to the general apathy of the people in such situations. The above view is fortified by the Supreme Court authority Yakoob Shah v. The State , wherein it was held :- "It is a frequent experience of criminal Courts that many a gruesome tragedy is enacted, with score of on-lookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that. These 'independent' on-lookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic injunctions. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest of their kith and kin."
15. In an other case Muhammad lqbal alias Javed iqbal v. The State , the Supreme Court was pleased to observe :- "This is unfortunate and can only be understood in the context of the conditions obtaining in that part of the country where the occurrence took place, namely, the reluctance of witnesses or lack of courage on their part to depose against the assailant for fear of reprisal. This discloses alamentable lack of civic sense and responsibility on the part of a citizen to tell the truth and to act for the benefit of the society and in aid of the authorities charged with the duty of maintaining law and order."
16. Thus, the lack of independent evidence in the instant case can only be regretted, though it cannot be helped. Nevertheless the evidence of the complainant and his brother is quite truthworthy and there is absolutely no justification to doubt it. The fact that Ahmed Ali Shah was unwilling to support the case and hence he was given up and that the mashir Nazeer Ahmed who was examined gave a go-by to the prosecution case further strengthens the belief that first of all independent witnesses would not come forward to give evidence in the case of others and secondly even if they are cited as witnesses they, at some or the other stage of the case, are pressurized by the accused3 4 party and consequently they deviate from the true evidence with least hesitation. If the prosecution knew that Ahmed Ali Shah and Nazeer Ahmed would back out from their true statement they would not have been cited as witnesses. Thus, it is clear that they have stabbed the prosecution in back only under the pressure of the accused party. Moreover they are least concerned about the result of the case because whatever, be the decision it is not going to affect them. This consideration too seems to have weighed with them when they decided not to support the prosecution case.
17. The ocular evidence of the complainant and his brother is further supported by the evidence relating to apprehension of the accused at the spot. For proving this piece of evidence, the prosecution have relied more on the evidence of the complainant and his injured brother who has stated in an unambiguous language that the accused was captured by the complainant at the vardat. They have further stated that he was taken the Police Station and made over to the police alongwith the pistol and cartridges recovered from his possession. Their evidence is supported by the S. H.O. Abdul Jabbar (P. W. 5). According to the S. H.O. When the complainant came to lodge F. I.
18. R. He had also produced accused before him alongwith one pistol and three cartridges allegedly secured from accused's possession. His evidence further shows that be arrested the accused and secured the gun and cartridges in presence of mash irs Nazeer Ahmed and Manzoor Hussain. The mashir Nazeer Ahmed who was examined by the prosecution, has however not supported the prosecution case. His evidence is clearly shaky. On one hand he has stated that police arrested the accused on Karachi road showing thereby as if he was present at the time of his arrest and on the other hand he stated that when a he reached the place of arrest the accused was already under arrest of police. I have no doubt that he has been won over by the accused and therefore, has made a crude attempt to give obliging statement in favour of the accused. His statement can easily the excluded from consideration. But there is no reason to doubt or disbelieve the statement of the S. H. O It is now well-settled that the evidence of the Investigating Officer can bet placed at par with that of any other witness. There is nothing to show that the S. H.O. Was in any way hostile to the accused or that he had hand in engineering false case. In these circumstances the trial Judge has rightly placed reliance on his evidence which corroborates the evidence of the complainant and his brother with regard to the accused having been captured at the vardat. Even otherwise it is not believable that unless he had been caught at the spot and brought to the Police Station, he would be physically present at the Police Station at the time of his arrest.
19. For the foregoing reasons I am convinced that the prosecution have proved their case against the accused beyond reasonable doubt. Accord I ingle I see no justification to interfere with the findings of the learned trial Court. Therefore, the appeal is dismissed. 1978 P Cr. L J 670 1980 SCMR 979 PLD 1976 SC 53 PLD 1976 SC 291