' By this single judgment, I propose to dispose of both the reference and appeal entitled above as they arise out of the same order and judgment of the District Criminal Court, Mirpur, dated January 29, 1987 and involve common questions of law and facts for their decision.
2. The brief facts giving rise to the above reference and appeal are that on 21-4-1981 at 9.30 a.m.
Abbas Ali, complainant lodged an F.I.R. With the Police Station Dadyal in which it was alleged that Abdul Rehman and his party had got his son, Mahmood by name, murdered in the year 1976 on account of which enmity existed between him and Abdul Rehman and Abdul Hakeem sons of Hassan Muhammad, residents of Potha Bangish, Tehsil Dadyal. It was further alleged in the report that today on 21-4-1981 at morning time, his wife Mst. Fazal Bi and daughter Mst. Riasat Bi left their house for fields for throwing dungs and contention that it is not lawful to base conviction on uncorroborated evidence of interested and inimical witnesses, the learned counsel for the appellant has referred to PLD 1980 SC 11, 1980 SCM R 225, 1980 SCM R 979 and 1985 SCM R 95.
10. The learned counsel for the State and the complainant have contended that the mere fact of the eye-witnesses being related inter se and to the deceased by itself is not sufficient to discredit their testimony outright if they are otherwise found to be witnesses of truth and that the corroboration of evidence of interested and inimical witnesses by some other evidence considered to be necessary before basing the conviction on such evidence, does not necessarily mean the evidence of independent witnesses but anything in the circumstances tending to satisfy the Court of such interested witnesses having told the truth, shall be regarded as sufficient corroboration of such evidence. It is, thus, contended that the ocular evidence in this case is sufficiently corroborated by the recoveries of the blood-stained earth from the place of occurrence, blood- stained clothes from the person of the deceased, weapon of offence from the appellant, the empty cartridges from the compound of the house of Abdul Hakeem, appellant and medical evidence. In support of their above contention, the learned counsel have referred to PLD 1976 SC 53, PLD 1983 SC
(AJK) 211, PLD 1979 SCMR 23 and PLD 1978 SC (AJK) 146.
11. It is further contended by the learned counsel for the State and the complainant that the defence, in collusion with the investigating agency, had managed to break the seal of the parcel containing the pellet recovered from the forehead of the deceased during the post-mortem examination of his body and replaced the said pellet with a lead bullet Exh. P4 and as such, the fact that the Expert of fire-arms had returned the said lead bullet unexamined on the ground of weapon of respective bore having not been sent to him does not go to prove that the pellet recovered from the body of the deceased was not fired from the weapon of offence recovered from the appellant and consequently, the prosecution's version of incident stands contradicted by the examination report and evidence of the said Expert of fire-arms.
12. I have given my due consideration to the above respective contentions of the learned counsel for the parties in the light of the facts and circumstances of the case and the law applicable to it.
The fate of this case hinges alone on the decision of the question as to whether or not the conviction of the appellant can be based on the testimony of the eye-witnesses, without the same having not been corroborated by any other independent evidence. If the answer to the above question is found in the affirmative, then the charge levelled against the appellant by the prosecution of his having fired at and killed Qurban Hussain deceased, stands fully established, but if some independent corroboration of the ocular evidence is considered necessary before basing the conviction of the appellant on it then the same being lacking, the appellant becomes entitled to be acquitted by way of giving him the benefit of doubt.
13. In the facts and circumstances of the case, I am of the view that it would be unsafe to convict the accused-appellant on the basis of eye-witness account, without any reliable corroborative evidence. It is established from the record and it is even the case of the prosecution itself that there existed long-drawn enmity between the complainant party and the accused before the occurrence despite the fact that the parties were very closely related. In the F.I.R. It is alleged that the son of the complainant, Mahmood by name, was got murdered by Abdul Rahman, accused and his party. The complainant party also suspected that Abdul Razaq who was accused of committing the murder of aforenamed son of the complainant in the year 1976 and is brother of the wife of Abdul Hakeem, appellant, was being supported by the accused party during the trial of the case against him. There was also litigation both of civil and criminal nature, going on between the complainant party and the accused, before the present occurrence took place. The complainant, despite being brother of Fazal Ellahi deceased-accused and maternal-uncle of Abdul Hakeem, appellant and Abdul Rehman, absconding co-accused, had strained relations with the accused party to the extent that he and his other family members were not on visiting terms with the accused and their family members, as is evident from the statement of Abbas Ali, complainant himself. Thus, in view of the above-mentioned circumstances, no other conclusion than the one that Abbas Ali, complainant and his son, Sohbat Khan who claim to be the witnesses of occurrence, are interested, hostile and inimical witnesses for which reason, the possibility of their falsely implicating the appellant in the murder of Qurban Hussain, deceased is not ruled out. Now it is the established law that it is essential to seek the independent corroboration of the ocular evidence of interested and inimical witnesses before basing the conviction of the accused on such evidence.
14. When the case is examined in the light of the above legal position, it appears that the ocular evidence stands contradicted by very important and undisputed piece of evidence collected by the investigating agency in the shape of recovery of crime bullet from the forehead of Qurban Hussain deceased during his autopsy, what to speak of its finding support from any other independent evidence of corroborative force tending to provide satisfaction that the eyewitnesses have spoken truth thereby eliminating the possibility of the false implication of the appellant in the murder case. The doctor during the autopsy of the body of Qurban Hussain deceased, had recovered the bullet from his forehead which was made into parcel and taken into possession by the investigating agency. The above parcel alongwith the other articles was sent to the Laboratory of Forensic-Science for examination and report by the S.P. Mirpur Vide his letter, dated 26-5-1981 but the report of the Expert of fire-arms was neither filed with the challan nor produced during the trial of the case despite the repeated requests of the defence to that effect. This Court considering the production of the examination report of the Expert of Fire-arms necessary for the just decision of the case, summoned the said Fire-arm expert for producing the same and getting his statement recorded in respect thereto. Muhammad Ashraf Malik, Examiner of the Fire-arms, Forensic Science Laboratory, Lahore, appeared before this Court on 23-11-1988 and produced the examination report, the counter copy of which was sent by him to the S.P. Mirpur on 26-7-1981, and he was also examined as Court witness. The examination report, in para. 3 of its opinion column contained the following entry:- "The crime lead bullet marked as 'B' has been sent unexamined because the weapon of respect bore has not been sent for examination."
' In his evidence before the Court,he has testified to have made the above entry and has further stated during the cross-examination by the learned Defence Counsel that in normal course, the contents of .12 bore gun manufactured by standarised factory, the bullet like the one sent to him could not be recovered from the dead body. The above-stated contents of the examination report and the evidence of the fire-arms expert, in other words, meant that the bullet recovered from the forehead of Qurban Hussain deceased during the post-mortem examination of his body, was not fired from any of the guns alleged to have been recovered from the appellant and the co-accused Abdul Rahman and used in firing at Qurban Hussain deceased and the eye-witnesses. The above fact leaves no manner of doubt that the fire-arm injury causing the death of Qurban Hussain deceased was not caused by the shot fired from the .12 bore gun allegedly used by the appellant in committing the offence with which he is charged.. Thus, the ocular evidence to the effect that the appellant had killed Qurban Hussain deceased by firing at him with the gun alleged to have been recovered from him, stands proved to be false and unfounded with the result that the accusation of the prosecution against the appellant becomes highly doubtful. Although it has come in the evidence of the prosecution itself that the bullet Exh. P4 was recovered from the fore-head of the deceased, yet even if, in view of the contention of the learned counsel for the appellant, it is assumed for the sake of argument that the defence, in collusion with the investigating agency, had managed to break the seal of the parcel containing the bullet recovered from the forehead of the deceased and the bullet was replaced by the one sent to the Forensic Science Laboratory, Lahore, yet the fact remains that this piece of evidence, at the most, had to be ignored with the result that it cannot be used either in corroboration or rebuttal of the ocular evidence. In that case too, the statements of the eye-witnesses do not find corroboration from any other evidence although, as already mentioned, it needed to be corroborated by some other independent evidence.
15. I do not find much force in the contention of the learned counsel for the complainant that the circumstances such as recovery of empty cartridges from the place from where the gun-shot was fired by the accused, recovery of bloodstained earth from the place of occurrence, recovery of blood-stained clothes from the person of the deceased, recovery of weapon of offence from the appellant and the medical evidence furnish sufficient corroboration of the evidence of the eye- witnesses in which they had accused the appellant of being responsible for causing the death of Qurban Hussain by firing at him with .12 bore gun. None of the above circumstances, in my view, can be said to be providing any corroborative evidence of the ocular testimny. The gun recovered from the appellant was not proved to have been used in causing the fire-arm injury to the deceased and rather, in view of the examination report and the evidence of the Expert of Fire-arms the bullet which caused injury on the forehead of the deceased, was not fired from the gun recovered from the appellant. Similarly, the recoveries of blood-stained earth from the spot and the bloodstained clothes from the body of the deceased, do not, by any stretch of imagination, connect the appellant with the commission of the offence of murder of Qurban Hussain deceased.
The medical evidence also does not, in any way, corroborate the eye-witness account which, on the contrary, rebuts the same inasmuch as the bullet recovered from the forehead of the deceased did not match with the weapon of offence recovered from the appellant.
' For the foregoing reasons, the prosecution has failed to bring home the guilt of the accused- appellant beyond any reasonable doubt and conscquenty, the appellant becomes entitled to be given the benefit of doubt and accordingly is to be acquitted. Therefore, giving the benefit of doubt to the appellant, his conviction recorded and sentence awarded to him by the District Criminal Court, Mirpur, is set aside and he is acquitted. As a result, the appeal of the appellant succeeds while the reference fails. The appellant shall be released forthwith if not wanted in any other case.
The gun recovered from the appellant shall be returned to him after the expiry of the period of appeal if it was licensed in his name, otherwise it shall stand confiscated in favour of the State. The other recovered articles shall be destroyed.