' Being aggrieved with the judgment, dated 30-1-1989, passed by Ist Additional Sessions Judge (Central) Karachi, convicting the appellant for the offence under section 302, P.P.C. And sentencing him to imprisonment for life and to pay a fine of Rs,10,000 or in default to suffer R.I. For six months and further to pay compensation of Rs,20,000 to the heirs of the deceased Imam Ali, or in default thereof to undergo R.I. For six months, the appellant has filed this appeal under section 410, Cr.P..C., with the prayer that the judgment recorded against him be set aside.
2. Deceased Imam Ali resided in a Jhuggi (hut) in Baluch Colony, Azizabad, Karachi with his family members. Appellant Liaquat Ali also resided with him in the same hut. It is alleged that there was exchange of hot words between them over the demand of Rs,200 which the appellant had taken as loan from deceased Imam Ali. It is the case of the prosecution that on 18-4-1982, at about 10-30 p.m. While deceased Imam Ali was sleeping in his but appellant Liaquat Ali arrived there and caused him a blow on his head by means of Seeron (wooden Danda of cot). The cries raised by deceased Imam Ali attracted his brother-in-law (wife's brother) Ghulam Ali and others, who saw the appellant running away, who while leaving threw the Seeron at the place of incident. Ghulam Ali went to Police Station Joharabad where his report was recorded in Roznamcha (station diary).
Deceased Imam Ali who was in coma was taken to Abbasi Shaheed Hospital where he was provided first aid and then shifted to Jinnah Post-Graduate Medical Centre, Karachi, where he died on 23-4-1982. The copy of Roznamcha was then incorporated in 154, Cr.P.C. Book and thereafter the investigation commenced. Syed Sakhawat Hussain, S.H.O. Took up the investigation and after holding inquest in respect of deceased Imam Ali, he inspecterd the scene of occurrence which was shown to him by Ghulam Ali. The Seeron was then seized in presence of Mashirs, which was not found stained with blood. The Police Officer then recorded the statements of witnesses and on the strength thereof challaned the appellant alongwith Abdul Aziz and Abdul Majeed (since acquitted).
3. The appellant and co-accused Abdul Aziz and Abdul Majeed pleaded not guilty to the charge and claimed a trial. At the trial the prosecution has examined Ghulam Ali (P.W.1), Dr. Shahid Azhar Siddiqui (P.W.2), Mst. Dhano (P.W.3), Ghulam Qadir (P.W.4), Ghulam Akber (P.W.5), Fazaldin alias Fazal Muhammad (P.W.6), Jumo (P.W.7), and Syed Sakhawat Hussain S.H.O. (P.W.8).
4. Appellant Liaquat Ali and co-accused Abdul Aziz and Abdul Majid disputed the case of the prosecution. They did not examine themselves on oath. They also led no defence.
5. On the assessm ent of evidence the learned Additional Sessions Judge extended benefit of doubt to both Abdul Aziz and Abdul Majeed and acquitted them. He, however, found the appellant guilty for the offence under section 302, P.P.C. And convicted him accordingly. It is in these circumstances that the present appeal has been filed.
6. The question that deceased Imam Ali died an unnatural death need not detain me long. Besides the evidence of Ghulam Ali (P.W.1) which I will discuss at the appropriate stage there is evidence of Dr. Shahid Azhar Siddiqui (P.W.2) who had conducted autopsy on the dead body of Imam Ali, and is of the opinion that Imam Ali died due to intracranial haemorrhage consequent upon an injury caused by some hard and blunt substance. The appellant has also not very seriously questioned this aspect of the case.
7. The evidence against the appellant consisted of ocular testimony of complainant Ghulam Ali (P.W.1), Mst. Dhano (P.W.3), Ghulam Qadir (P.W.4) and Ghulam Akbar (P.W.5), corroborated by Fazaldin alias Fazal Muhammad (P.W.6) and Jumo (P.W.7). The evidence regarding recovery of Seeron and motive was, however, not relied upon by the trial Judge.
8. Admittedly all the above witnesses are closely related to deceased Imam Ali. Ghulam Ali (P.W.1) who is complainant in this case is brother of Mst. Zulekhan wife of deceased Imam Ali. Mst. Dhano (P.W.3) and Fazaldin alias Fazal Muhammad are mother and father respectively, of deceased Imam Ali. Jumo (P.W.7) is brother of deceased Imam Ali, while Ghulam Qadir (P.W.4) and Ghulam Akbar (P.W.5) are sons of deceased Imam Ali. The testimony of witnesses, however, who are natural witnesses of an occurrence and when one would expect to have seen it should not be doubted only because they are related to deceased person. However, when a Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence.
9. As observed in the case of Muhammad Sadiq v. Muhammad Sarwar and 2 others reported in 1979 SCMR 214, the primary question in a case is not whether the witness is a hostile witness or a disinterested witness, but whether he is an honest witness or a dishonest witness. Sometimes, even a hostile witness may speak the truth, whilst a totally disinterested witness may be bribed or pressurised into giving false evidence, therefore, if I may be permitted to say so, the test of enmity is a rule of thumb method for ascertaining the veracity of a witness, and the question will always be of the veracity of the witness, and therefore, in addition to the question whether a witness is interested or hostile or disinterested, the Courts should also examine the question whether the evidence is inherently probable and whether it is consistent with the circumstantial evidence.
10. I now proceed to examine the evidence of the alleged eye-witnesses. Mst. Dhano (P.W.3) is mother of deceased Imam Ali. She claims to have shifted to Karachi, alongwith her son Imam Ali leaving her husband Fazaldin alias Fazal Muhammad at Badah, District Larkana. Ghulam Ali (P.W.1) who is brother-in-law of deceased Imam Ali, however admits in clear terms that at the time of incident she was not present at Karachi, but was residing in Badah, District Larkana. The evidence of Jumo (P.W.7) who is brother of deceased Imam Ali further shows that Mst. Dhano (P.W.3) had come to Karachi after receiving telephonic message about this incident alongwith Fazaldin alias Fazal Muhammad, although on second thought he resiled from this statement. It will not be out of place to mention here that according to Jumo (P.W.7), deceased Imam Ali was residing with the parents of his wife and in such a situation the stay of Mst. Dhano (P.W.3) with Imam Ali leaving her husband in Badah, District Larkana does not appeal to reason. Again there is significant omission of the name of Mst. Dhano in F.I.R. (Exh.11), which was lodged soon after the incident by Ghulam Ali who claims to be an eye-witness in this case. All these Iactors when combined together indicate that Mst. Dhano (P.W.3) did not witness the incident and she was set up as an eye-witness with a view to. Strengthen the case of prosecution.
11. Ghulam All (P.W.1) resided near the place of occurrence. He has testified that on the relevant night he was sleeping in his but situated at a distance of about 10 or 15 paces from the place of occurrence when he was attracted by cries raised by Mst. Zulekhan wife of deceased Imam Ali. He came out of his but ' and saw appellant Liaquat Ali armed with a Danda running away. The cries also attracted Karimdad and Arbab (not examined) who were staying with Bagh Ali as guests. The F.I.R. (Exh.11) also discloses that the commotion had attracted persons from locality. Quite admittedly the incident took place at 10-30 p.m. No source of identification is mentioned in the body of F.I.R. (Exh.11).
It is, however, clear that there was no electricity in the Jhuggi (hut) of deceased Imam Ali. The assailant who had selected the late hours for causing the injury to deceased Imam Ali must have taken all precautions to conceal his identity. The identification of appellant Liaquat Ali on a momentory glimpse during night time at late hours without proper light when complainant Ghulam Ali was under stress will, therefore, be highly doubtful. Since there was exchange of hot, words between appellant Liaquat Ali and deceased Imam Ali over the demand of Rs,200, the appellant was taken as assailant due to suspicion. The suspicion, however strong it may be cannot be taken as substitute of legal evidence. It may be noted that none of the persons from the locality was examined to corroborate the version of Ghulam Ali although their presence is admitted in F.I.R.
(Exh.11) itself.
12. Ghulam Qadir (P.W.4) and Ghulam Akbar (P.W.5) are sons of deceased Imam Ali. Both of them resided in the same hut. The incident took place inside the hut, hence their presence at the relevant time was quite natural. The evidence of these witnsses is tinged with hatred against the appellant to whom they had taken as the assailant of their father. The perusal of their statements recorded on oath shows that they have not only exaggerated their story, but they have freely mixed lies with truth by implicating two persons, viz. Abdul Aziz and Abdul Majeed, who were subsequently found not guilty and acquitted. They are falsified by complainant Ghulam Ali (P.W.1) in respect of co- accused who stated as follows:-- "Accused Liaquat present in Court is same and other accused were not present at the time of offence at Wardat nor they gave injuries to my brother-in-law."
13. All the three witnesses who claim to have witnessed the incident have given changing version about the role attributed to co-accused. Mst. Dhano F (P.W.3) stated as follows:- "On that night following 7 p.m., at about 10 p.m. Or 10-30 p.m., I, Imam ALi, Ghulam Qadir, Ghulam Akbar, wife of the deceased and other family members were sleeping in the house, when I heard cries of my son Imam Ali. We all rose and saw that accused Liaquat had in his hand Seeron i,e, the wooden Danda used in the head side of the cot. Aziz and Majeed were standing near the cot of deceased. We raised cries. Then all accused ran away."
14. Ghulam Qadir (P.W.4) however, states as follows:- "In the night at about 10-30 p.m. While we all the family members named above were sleeping the accused present in Court came there. Accused Aziz and Majeed encircled the cot of my father, while accused Liaquat caused him injuries with Seeron..."
15. Ghulam Akbar (P.W.5) goes a step further by stating:-- "On the following night at about 10-30 p.m. When we all were sleeping in our house, accused present in Court trespassed into our house. Accused Majeed and Azeez caught hold of the deceased while Liaquat caused him blows with Seeron of cot."
16. If a witness tells lie on one part of the case he may be disbelieved on other parts as well, as his evidence is prima facie unreliable. But there is nothing illegal to accept that portion of evidence which is reinforced by some thing else. The case reported as Muhammad Akhtar v. The State PLD 1957 SC 297 is relevant in a situation like the one under consideration.
17. No reliance, therefore, can be placed upon the evidence of Ghulam Qadir (P.W.4) and Ghulam Akbar (P.W.5) who have exaggerated the facts by implicating two persons, unless their evidence is supported by independent evidence of convincing character, which is lacking in this case.
18. The learned Additional Sessions Judge has sought corroboration of the evidence of so said eye- witnesses from the evidence of Fazaldin alias Fazal Muhammad (P.W.6) and Jumo (P.W.7) in para. 16 of the judgment, which reads as follows:-- "The evidence given by eye-wtinesses Mst. Dhano, P.Ws. Ghulam Akbar and Ghulam Qadir has been further corroborated by Fazaluddin and Jumo. Although the evidence given by them is of 'hearsay' nature but it supports the case of prosecution to prove that the incident occurred on night of incident and deceased was given blows by some hard blunt substance. The ocular account of the incident given by the eye-witnesses appears to be trustworthy and faith inspiring for several reasons. No animus has been suggested to any witness and in absence thereof, I see no good reason to exclude or reject their testimony. The question of mistaken identity of assailants also does not arise because accused were not only known to the witnesses prior to incident but Liaquat Ali accused is closely related to complainant and the eye-witnesses. The contradictions of minor nature are bound to occur in every case and the same cannot be made basis for rejecting the testimony of natural witnesses. For the reasons, I, place implicit faith on the evidence of eyewitnesses."
19. Certainly one tainted piece of evidence cannot corroborate the other tainted piece of evidence.
Both these witnesses speak of oral dying declaration made by deceased Imam Ali, thereby implicating all the three accused, little realizing that deceased Imam Ali had brain injury and he died due to intracranial haemorrhage, making it impossible to utter even a word.
20. Faced with this situation, Mr. K.M. Nadeem, learned A.A.-G. Has candidly conceded that the conviction of appellant is based on no evidence I whatever.
21. In the result the conviction recorded against the appellant is set aside and he is acquitted. The appellant who is present in custody be released forthwith, if not required in any other case. The appeal is accordingly accepted.
22. Before I part with this judgment, I may observe that moral conviction of a Judge about the guilt of accused could not form the basis of his conviction. I may usefully borrow the following passage from page 50 of Law of Evidence by Monir, reproduced with approval in the case Niaz Ali v. The State reported in 1980 SCM R 75:-- "However morally convinced a Judge may feel as to the truth of a particular fact, unless there is legai proof of its existence, he cannot take it as proved. Conjectures and suspicion cannot take the place of proof, and the Court's decision must rest not upon suspicion but upon legal grounds established by legal testimony. Once the evidence comes before the Court and stands the test of severe legal scrutiny, that evidence constitutes a legal proof. Then the dividing line between such proof and moral conviction vanishes. It is, however, the duty of the Court in each case to concentrate its attention on the relevant and admissible evidence and then to decide whether or not a particular fact has been proved from the evidence adduced in the case."