SAAD SAOOD JAN, J.---The appellant Muhammad Aslam alias Bodi, was tried alongwith his brothers, Mushtaq alias Tikha and Muhammad Akram alias Goga, by the Additional Sessions Judge at Lahore on charges under sections 302 and 307 read with section 34, Pakistan Penal Code, for causing the death of Muhammad Akram, deceased, and making murderous assault upon his brother Sabir Hassain (P.W.4). The learned Trial Court acquitted Muhammad Akram alias Goga on both charges. It convicted the appellant on the charge under section 302 alone and sentenced him to death in addition to payment of fine and compensation. It convicted Mushtaq alias Tikha on the charge under section 307 alone and sentenced him to rigorous imprisonment for a period of seven years in addition to payment of fine and compensation. On appeal and reference, the High Court maintained their convictions but reduced the substantive sentence of the appellant to imprisonment for life and of Mushtaq alias Tikha to the period already undergone by him. The appellant has filed this appeal in this Court by special leave to challenge his conviction and sentence.
2. The occurrence took place in the early hours of 23-7-1987 in front of the slaughter house at Bakkar Mandi, Lahore. Sabir Hussain (P.W.4) had a tea shop in front of the slaughter house.
According to the prosecution, the deceased and Shah Muhammad (P.W.6) were present at the shop at the relevant the while Sabir Hussain (P.W.4) was making tea for them. Suddenly, together with his brothers came there. They were all carrying fire-arms. As they reached the shop they started firing, hitting the deceased Hussain (P.W.4). The deceased died at the spot. ' Sabir Hussain (P.W.4) at the spot at 5-00 a.m. To Sub-Inspector Inayat of Police Station Nawan Kot who came there while patrolling.
3. The motive for the occurrence was stated to be a quarrel which took place between the parties on the immediately preceding night. The father of the appellant was stated to have intervened and pacified them.
4. The appellant and his brothers pleaded not guilty to the charges against them. They denied that they were responsible for causing the death of the deceased or making murderous assault upon Sabir Hussain (P.W.4). They did not lead any evidence in their defence. The Trial Court as well as the High Court found the ocular account substantially true and on its basis found the appellant and Mushtaq alias Tikha guilty of murder and culpable homicide not amounting to murder, respectively.
5. Leave to appeal was granted to the appellant to consider whether the Courts below were right in relying upon the ocular testimony for convicting him of the murder of the deceased.
6. The ocular account in this case comprises the statements of Sabir Hussain (P.W.4) and Shah Muhammad (P.W.6). The occurrence took place at the tea shop of Sabir Hussain (P.W.4). He would thus appear to be a natural witness. Shah Muhammad (P.W.6) is admittedly a cousin of the deceased and Sabir Hussain (P.W.4). He also claimed to be a cousin of the appellant. However that may be, his presence at the scene of occurrence at the relevant the is not free from doubt. As noticed above, the occurrence took place at 4-00 a.m., in the morning. This was hardly the the for Shah Muhammad (P.W.6) to be present at the tea shop. He claimed that he was engaged in the business of slaughtering sheep and selling mutton but then there is nothing on the record to back up his claim. For slaughtering of sheep one needs a licence and admittedly he held none even though he asserted that he had a separate place for slaughtering animals in the slaughter house.
7. Sabir Hussain (P.W.4) to does not appear to be a truthful witness. Although, he claimed that he was fired at by Mushtaq and that he was hit in the right leg, yet the doctor who examined him expressed the opinion that his injuries were caused by blunt weapon. The opinion of the doctor was not challenged by the prosecution when the doctor appeared at the trial to give evidence. It may also be mentioned that according to the defence Sabir Hussain (P.W.4) had fabricated his injuries in order to show his presence at the scene of occurrence at the relevant the.
8. The trial Court ads well as the High Court rejected the ocular testimony so far as participation of Muhammad Akram, co-accused, was concerned. In this context, the learned Trial Judge observed: "... It cannot be ruled out that the name of Muhammad Akram accused was added after consulting and deliberation, to inculpate the three abled young persons of the accused family."
This observation does not reflect favourably on the quality of the ocular testimony.
9. According to the prosecution the motive for the attack on the deceased was a quarrel which had taken place between the deceased and the appellant on the night immediately preceding the occurrence. Now, it was the case of the prosecution itself that it, was the father of the appellant who had intervened and pacified the parties. That being so, there was hardly any occasion for the appellant and his brothers to fire at the deceased on the following morning. Thus, the motive for the occurrence set up by the prosecution does not seem convincing.
10. Admittedly, there was a dispute between Mushtaq alias Tikha co-accused and Haji Bashir, father-in-law of Sabir Hussain (P.W.4), over the possession of a Haveli. They were both involved in a murder case and Mushtaq alias Tikha had taken over the possession of the Haveli on the pretext that Haji Bashir owed him some money which had been spent in defending the case. It was alleged by the defence that Sabir Hussain (P.W.4) had involved Mushtaq alias Tikha and his brothers in this case in order to assist Haji Bashir in getting back the possession of the Haveli. The defence story may or may not be true but it was admitted by Sabir Hussain (P.W.4) that after the arrest of Mushtaq and his brothers in the present case his father-in-law had taken back the possession of the Haveli.
11. In view of what has been stated above it does not seem to be a case where the ocular testimony can be relied upon without independent corroboration. The High Court- noticed that the appellant had absconded soon after the occurrence and this was a circumstance which supported his participation in the occurrence. It may be mentioned that the investigating officer did not care to detail the efforts that he had made to arrest the appellant. Although, he claimed that he had pasted the proclamation issued under section 87/88, Cr.P.C., on the residence of the appellant, yet the address which the appellant gave in respect of his residence was different from the one where the proclamation was pasted. In the circumstances, it cannot be said with any measure of confidence that the appellant had absconded after the occurrence.
12. It will thus be noticed that the ocular testimony is not of a quality upon which implicit reliance can be placed to convict the appellant on the charge under section 308, further, there is no credible evidence which may be based for seeking confirmation of the ocular testimony. In the circumstances, we accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge against him. He shall be set at liberty forthwith if not required in any other' case.