' AJMAL MIAN, J.---This is an appeal, with the leave of this Court,' against the judgment dated 20-9- 1989 passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, in Criminal Appeal No,116 of 1988 filed by the appellant against the judgment dated 30-6-1988 passed by the Additional Sessions Judge, Attock in Sessions Case No,22 of 1988/Sessions Trial No,53 of 1988, convicting the appellant under section 302, P.P.C. For murdering Ghulam Khan son. Of Mian Khan, hereinafter referred to as 'the deceased', and sentencing him to imprisonment for life and to pay a fine of Rs,6,000, in default of payment to further undergo R.I. For one year and also ordering compensation under section 544-A, Cr.P.C. In the sum of Rs,10,000 to be paid to the legal heirs of the deceased, failing which to undergo further R.I. For 6 months, dismissing the same and maintaining the above conviction and sentences.
2. Upon receipt of a petition from Jail, leave to appeal was granted to consider the questions, whether the two Courts below properly appraised the evidence on record and, whether they failed to take into consideration the peculiar circumstances of the present case.
3. The brief facts are, that on 19-4-1987 at about Peshiwela P.W.8 Mian Khan, the complainant, the father of the deceased, accompanied with the deceased, his daughter P.W.11 Mst. Hashmat Jan had taken their cattle for drinking water to the well known as "Phiki Khoohi", hereinafter referred to as "the well", where P.W.9 Abbas Khan, son-in-law of P.W.8 Mian Khan and husband of P.W.11 Mst.
Hashmat Jan was already present at the well. It was alleged that when the cattle finished drinking water a bullock of the complainant went towards "Soka Nala". The deceased had gone after the bullock whereas the above P.Ws. Remained present at the well. It was alleged that when the deceased reached at some distance from the "Soka Nala", the appellant came out of the bushes of "Marvan" where he was hiding himself duly armed with a Chhuri and after raising Lalkara inflicted Chhuri blow on the left side of the deceased resulting into his death. It was further alleged that after inflicting the fatal injury, the appellant escaped towards the village with his Chhuri. It was also averred that the occurrence was witnessed by the above P.Ws. 8, 9 and 11.
4. The motive alleged was that about 12-14 years prior to the incident, the appellant, who was related to the complainant, had abducted daughter of the complainant Mst. Rukhmat Jan and contracted marriage with her without the consent of the complainanat and his family. It was averred that since the complainant was a poor man, he did not report the matter to police but the appellant was ex-communicated by the family of the complainant. The appellant made efforts all along for compromise but he was spurned by the complainant and the deceased and due to this grudge, the appellant was said to have killed the deceased.
5. After' the above occurrence, the complainant P.W.8 Mian Khan alongwith P.W.9 Abbas Khan, his son-in-law, started for the police station, leaving behind P.W.11, Mst. Hashmat Jan with the dead body of the deceased, but, when they reached near the school, P.W.12, Khalid Akbar, S.I. Alongwith other police officials, appeared from the Mathial Chowk side, who recorded the complaint Ex. P.C.
After that, he forwarded the same to the police station as per note Ex.PC/2, whereupon F.I.R. Ex.PC/1 was recorded by P.W.4, Muhammad Afzal, then Head Constable. The autopsy was carried out by Dr. Masood Akhtar on 20-4-1987 at 7-00 a.m., who found the following one injury on the person of the deceased: "1. A stab wound 2-1/2 c.m. x 1 c.m. Into chest cavity deep, 4 c.m. Below the left nipple."
' On dissection, the injury was found going through skin, fascia and muscle and then injuring the infer lobe of left lung penetrated the apex of the heart alongwith pericardium. The chest cavity was found full of blood. The stomach was found containing two ounces of semi-digested food. Small intestine contained semi-digested food and the large intestine contained faecal matter. He opined that the injury was caused with a sharp-edged weapon and was ante-mortem. The duration between the injury and death was 15 to 20 minutes and duration between the death and post- mortem was 18/19 hours.
6. The appellant could not be arrested as he was found missing. He was declared absconder and a proclamation under sections 87-88, Cr.P.C. Was issued against him which was duly served by P.W.10 Muhammad Riaz, Police Constable. However, on 22-10-1987, P.W. 7 Muhammad Anwar, the then S.H.O. Police Station Pind Sultani, arrested the appellant. On 25-10-1987, the appellant led to the recovery of a Chhuri with its cover, Exhs. P/3 and P/4, from his residential house, which was secured by P.W.7, Muhammad Anwar, Inspector, who also prepared the site plan, Exh.PE/1 and handed over the Chhuri and cover to the Moharrir.
7. On completion of the investigation, the case was challaned in the Court of Additional Sessions Judge, Attock. The prosecution examined as many as 12 witnesses. The appellant examined himself on oath under section 340, Cr.P.C. And also made statement under section 342, Cr.P.C. He denied the offence. He also denied that he absconded after the commission of the offence. He explained that he had gone to Punjab for begging as he was a beggar by profession.
8. The learned Sessions Judge, after hearing the parties by his aforesaid judgment convicted the appellant and sentenced him in the above" terms. He discarded the alleged recovery of the Chhuri.
However, he was of the view that ocular testimony furnished by the above three eye-witnesses, coupled with the corroboration by motive, medical evidence and the abscondence of the appellant, proved the case. While awarding the sentence, he thought that since the right leg of the appellant was amputated before the occurrence and as he had not repeated the injury to the deceased, there were sufficient mitigating circumstances for imposing lesser sentence of imprisonment for life.
9. Against the above judgment, the appellant filed aforesaid criminal appeal, which was dismissed by the learned Judge in Chamber. After that, the, above jail petition was received by this Court from the Jailer, which was granted to consider the above question.
10. The appellant has been represented by Mr. Nasim Saeed Shaikh, learned Advocate Supreme Court, whereas none appeared on behalf of the State.
11. In support of the above appeal, Mr. Nasim Saeed Shaikh has urged as under:
(i) That the ocular testimony of the three eye-witnesses is unreliable.
(ii) That the appellant could not have any motive to cause death of the deceased but the motive, if any, could have been on the part of the complainant party to cause harm to the appellant.
(iii) That the version of the prosecution is highly improbable, keeping in view the factum that right leg of the appellant was amputated from the knee and he had artificial wooden leg.
In support of his above first submission, he has taken us through the evidence of the above three eye-witnesses and we find that there are a number of discrepancies as to coming to the well by the above witnesses. The complainant has made following contradictory statements about P.W.9 Abbas Khan's coming to the place of Wardat:
(i) In his examination-in-chief, he has stated that he, his daughter Hashmat Jan, his son the deceased and his son-in-law, P.W.9 Abbas Khan had gone to the well towards west with animals for drinking water.
(ii) In his cross-examination, he stated:
(a) That Abbas Khan had come to his house and asked him to bring cattle and told him that he was going to the well with the goats.
(b) That he had sent his son to the house of Abbas Khan asking him to take goats to the well and that he would also bring his cattle.
11. There is also contradiction on the factum whether P.W.11 Mst. Hashmat Jan was living with the complainant in his house at the relevant time or she was living in her husband's house. According to P.W.8, the complainant Mian Khan, she was living with him and she went to the well with him, whereas, according to P.W.11 Mst. Hashmat Jan, she was living with her husband and had come to the well from there. Besides the above contradiction, there are other contradictions which need not be referred to.
12. Even if we were to ignore the above contradictions, the fact remains that according to the complainant's own version, they were not on good terms with the appellant inasmuch as P.W.8 Mian Khan the complainant has deposed that he had severed his connections from the appellant after he abducted his daughter 12-14 years prior to the incident and in spite of his approaches, the complainant did not forgive him. Keeping in view the above factum, prudence demands that there should be some independent corroborative piece of evidence.
13. This leads us to the question of motive, which has been relied upon by the two Courts below, namely, that the appellant abducted Mst. Rukhmat Jan 12-14 years prior to the incident and married to her without the consent of the complainant, he was ex-communicated by the family of the complainant. The appellant made efforts all along for compromise with the complainant but he was spurned by the complainant and the deceased and because of that the' appellant had nourished a grudge against the deceased. In our view, the above motive was not well-founded as the complainant party would have motive against the appellant to implicate him falsely and not the appellant, who was already married 12-14 years prior to the incident and had five children from the above wedlock. We are, therefore, of the view that the motive alleged by the prosecution, does not furnish the required corroboration.
14. The two Courts below have also relied upon the medical evidence as a corroborative evidence.
In our view, the medical evidence may furnish corroboration on the question as to the nature of weapon used in the commission of the offence but it cannot provide corroboration as to the identity of the person who committed the offence. The alleged recovery of Chhuri from the appellant's house has been discarded by the trial Court itself as the Chhuri was not bloodstained and nobody from the eye-witnesses stated that the aforesaid Chhuri was used.
15. The Courts below have also relied upon the fact of abscondence of the appellant from the village. The appellant has given an explanation for his absence from the village. Even if we were to ignore the above explanation, the above act of abscondence on the part of the appellant will not be sufficient corroboration if we were to hold that it is doubtful that the eye-witnesses were present at the place of incident.
16. Thus; there is no reliable corroborative piece of evidence on record. On the contrary, the prosecution version is highly improbable inter alia for the following reasons:
(i) That it is an admitted position teat the appellant's right leg from the knee was amputated and he was using an artificial wooden leg. The distance between the points where the alleged witnesses were standing and the place of Wardat was 52 karams i.e, less than 100 years. It is highly improbable that the appellant could have escaped from the place of incident after inflicting the fatal injury.
(ii) That the appellant could not have visualised that the complainant's bullock would stray towards the bushes of `marvan', where he was allegedly hidden.
(iii) Nothing has been brought on record to indicate that Peshiwela time was the normal time of the complainant for taking cattle to the well for the purpose of drinking water.
(iv) That it has come on record that there was other well/water source available nearer to the house of the complainant as compared to the well. Nothing has been brought on record to indicate as to the reason which prompted the complainant to take his cattle to the well.
(v) It has also come on record that the village where the incident took place had a number of houses but no independent person has been examined.
17. We may observe that simpliciter relationship between a victim of an offence and witnesses does not render such witnesses disqualified or make them interested witnesses as to require corroboration. But, if such witnesses have some motive to implicate the accused person falsely, they are termed as interested witnesses and, their testimony in the absence of reliable corroborative piece of evidence, cannot sustain a conviction.
18. We may also observe that it has come on record that there was some litigation between the complainant and his brother Gulab Khan. It has also come on record that there was fight between the deceased and his brother Amanat Khan on the one hand and their maternal-uncle Abdullah Khan and others, on the other hand in which both these sides suffered injuries. Though it is alleged that the above matter was patched up, but nothing has been brought on record to substantiate it.
In this view of the matter, the possibility that some one else might have murdered the deceased, cannot be ruled out.
19. We are inclined to hold that the presence of the eye-witnesses at the place of incident is not free from doubt and their testimony cannot be relied upon in the absence of reliable corroborative piece of evidence, not only because of the above reason but also because of the fact that they were not on good terms with the appellant according to their own statement. The two Courts below have acted contrary to the well-settled principles of jurisprudence applicable to criminal proceedings.
20. We would, therefore, allow the above appeal, set aside the judgment of the Courts below and the conviction and sentences. The appellant shall be released forthwith, unless he is required in some other case.