SAIDUZZAMAN SIDDIQUI, J.---The above criminal appeal with the leave of this Court is filed against the judgment of a learned Judge in Chambers of Lahore High Court dated 21-12-1993. Leave was granted to consider the following contention of the appellant:-- "3. Mr. Malik Saeed Hassan the learned Advocate Supreme Court contended that according to the prosecution there were to eye--witnesses namely Allah Ditta son of Rehmat and Zulfiqar son of Murid but only Zulfiqar P.W.8 was examined. It was further contended that P.W.8 admitted enmity with the accused and further that his testimony was in conflict with the medical evidence. It was pointed out that according to his statement, the petitioner fired at Nasar which hit him on the chest but according to the medical report, the fire-arm wound entry was found on right part of back abdomen upper most part below the inferior scapular margin going obliquely upwards and fire- arm wound of exit on front of right part of upper most portion of chest. In the first injury the wound margin was lacerated, inverted and blackened slightly. It was further contended that in these circumstances P.W.8 could not be believed and there being no independent corroboration the petitioner should have been acquitted. The contentions raised require appraisal of evidence for proper administration of criminal justice. Leave is granted."
2. The appellant, alongwith Muhammad Nawaz, Muhammad Amir, Muhammad Aslam, Abdur Razzak, Umar Hayat, Khalid Mahmood, Ghulam Ali and Pariah, was tried for committing murder of Nasar son of Muhammad Boota, by Additional Sessions Judge, Gujranwala, under section 302/148/149, P.P.C. The trial Court found only appellant guilty of offence under section 302, P.P.C.
And accordingly, convicted him to imprisonment for life with fine of Rs.10,000 and in default of payment of fine, to undergo R.I. For to years. The remaining seven co-accused were acquitted of the charge of murder while co--accused Pariah died during the proceedings. The appellant appealed against his conviction and sentence awarded by the trial Court, before the Lahore High Court but without any success, giving rise to the present appeal.
3. We have gone through the entire evidence in the case with the assistance of learned counsel for the appellant and the State and are of the view that conviction and sentence of appellant could not be sustained on the basis of evidence on record.
4. The F.I.R. In the case was lodged by Muhammad Boota, father of the deceased Nasar, a resident of village Aswa n Police Station Khangah Dogran, District Sheikhupura. It was alleged in the F.I.R. That 6 months prior to the incident one Khizar Hayat son of Umar Hayat resident of village Aswan was murdered whose legal heirs suspected complicity of deceased Nasar in the said murder. The complainant fearing reprisal from the legal heirs of said Khizar Hayat sent the deceased Nasar to Walayat son of Rehmat, a resident of village Ghunian. On 25-11-1988, at about Degerwala the complainant alongwith Muhammad Aslam (P.W.5), Arif (P.W.6) and the deceased Nasar was present at the Dera of Walayat. At that the appellant alognwith Ameer son of Hayat came to the Dera of Walayat, had some talk with deceased Nasar, and took him alognwith them. After departure of Nasar with appellant and Ameer, the complainant also left for his village. On the following day, i.e. 26-11-1988, the complainant was informed that his son Nasar was killed in village Chanoke. On reaching village Chanoke, the complainant was informed by Allah Ditta son of Rehman (given up P.W.) and Zulfiqar son of Mureed (P.W.8) that between the night of 25/26-11-1988, they were sitting on the heap of paddy in the adjoining field when a tractor driven by Muhammad Aslam son of Hayat (acquitted accused) passed by their side. Abdur Razzak son of Muhammad Sharif (acquitted accused) was sitting on the said tractor armed with a .12 bore gun. On reaching the field belonging to Ghulam Fareed, Muhammad Aslam and Abdur Razzak started ploughing the field where 'Tori' crop was standing. On the eastern (Watt) of the field, they saw in the moon light Ameer son of Hayat (acquitted accused) armed with .12 bore gun, appellant armed with 7 mm rifle, Nawaz son of Pannah (acquitted accused) armed with Carbine, Pariah son of Dost Muhammad (died during trial) armed with Sota, standing with deceased Nasar. After about an hour Umar Hayat son of Wali Muhammad armed with pistol, Khalid son of Inayat Muhammad armed with .12 bore gun and Ghulam Ali son of Inayat armed with .12 bore gun also arrived at the scene. On recognising them, Nasar deceased abused appellant and said that he was not right in calling his enemies. In reply Jehangir also abused Nasar. In the meantime Umar Hayat and others exhorted appellant to kill Nasar deceased, describing him as the murderer of his son. On this appellant fired at Nasar with his rifle which hit on his chest and he fell down. Appellant made another fire on Nasar which hit on his back. Thereafter, the accused persons fired in the air and decamped from the scene.
5. At the trial, the prosecution in support of its case besides other evidence which was of formal nature, relied on circumstantial evidence that the deceased was last seen in the company of appellant and Ameer, which was furnished by complainant (P.W.9), Muhammad Aslam (P.W.5) and Muhammad Arif (P.W.6), the eye-witness account of the incident narrated by Zulfiqar (P.W.8), the recovery of crime weapon (P.W.6) at the instance of appellant proved by Mohran (P.W.4), and medical evidence given by Dr. Captain Khalid Farooq (P.W.10), and motive which was deposed by complainant (P.W.9) and Zulfiqar (P.W.8). The learned trial Court relying on the testimony of Zulfiqar (P.W.8) and recovery of licensed arm (Exh.P.6) found the case of prosecution proved beyond reasonable doubt against appellant and accordingly, convicted him as aforesaid. The case of prosecution against other accused in the case was held not proved by the trial Court as the common object of the unlawful assembly was found to be to take possession of the agricultural land and not to commit murder. In so far accused Umar Hayat, who had a motive against the deceased and was alleged to have given Lalkara to the appellant at the the of incident was let of by the trial Court by saying that although he was armed with pistol and had a motive and was supposed to have taken the revenge himself but did not do so, therefore, case against him could not be said to have been proved by the prosecution.
6. In appeal the learned Judge in Chambers disposed of the whole case by observing as follows:-- "15. Having gone through the entire evidence with the assistance of the learned counsel for the appellant I am not persuaded by the contentions urged because presence of the star witness Zulfiqar P.W.8 at the venue and the of occurrence being natural, viz. Taking care of the heaped peddy with no untowards event having occasioned amongst the parties despite antiquity of the civil litigation rules out the theorised false iniminal involvement whose testimony stands corroborated by recovery of the crime weapon at the appellant's instance vouched by Abdul Ahad, Inspector/S.H.O. P.W.12, admittedly having no motive for fake plantation whose testimony remained undented despite the confession made by Mehram P.W.4, designedly introducing the element of last moment staying back in the street coupled with the medical evidence viz. The size of the inlet wound corresponding with the weaponry deployed qua which the pointed out discrepancy as to the number of shots tired at on the facts of the case would be inconsequential duly distinguishing the role of acquitted co-accused on the basis of the honoured principle of sifting chaff from the grains and motive being not always the determining factor for guilt or otherwise though being shrouded in mystery had justified lesser penalty."
7. With respect to the learned Judge in Chambers, we are unable to subscribe to the above reasonings. The learned Judge, in our view, dealt with the contentions of appellant in a very cursory manner without properly analysing the evidence on record, relied by the prosecution in support of its case against the appellant. The prosecution case rested solely on the testimony of Zulfiqar (P.W.8). This witness in cross-examination made the following statement:-- "My father Mureed had to other brothers, whose names are Fareed and Muhammad. It is correct that Muhammad who had died left behind Monda his son and Mehran his daughter. It is correct that Mst. Mehran is the mother of Jehangir accused present in the Court. Monda has also since died, but I do not know when did he die. It is correct that the widow of Muhammad contracted second marriage with said Fareed. It is correct that the estate left of Muhammad deceased was got mutated in their favour by Fareed and Mureed, excluding Mst. Mehran, the daughter of Muhammad. It is correct that the share received by Mureed my father from the inheritance of Muhammad was gifted away by him in my favour and my other brothers. It is correct that Mst.
Mehran filed a civil suit in Civil Court, Hafizabad, against me and my father. An appeal also arose out of that suit which was filed and decided from the Court of District Court, Gujranwala. It is incorrect that the appeal was decided in favour of Mst. Mehran. It is correct that after the acceptance of appeal filed by Mst. Mehran, the suit was remanded for its trial to the learned trial Court. It is correct that on behalf of Mst. Mehran her son Jehangir the accused present in the Court used to persue the case. It is correct that on account of this litigation we were inimical to each other. "
In view of the above statement of P.W.8, he was clearly an interested witness having a motive to involve the appellant in the case. The rule regarding appreciation of the evidence of an interested witness was laid down by this Court, while explaining an earlier case of Niaz v. State (PLD 1960 SC (Pak.;--387) in the case of Nazir and others v. The State (PLD 1962 SC 269), as follows:-- "By what we said in Niaz v. The State we were not laying down any rule of law though we were explaining for the guidance of Courts our own approach to the problem that generally confronts the Courts in cases of crime by violence. It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts.
But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person But he will be an exceptional witness and so far as an ordinary interested witness is concerned it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness.
Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the to do not stand on the same footing. "
In view of the enunciation of above rule of prudence, the evidence of Zulfiqar (P.W.8) required a very cautious analysis before it was accepted for sustaining conviction of appellant on a capital charge. This witness besides implicating appellant in the murder of Nasar, also involved his brother Nawaz alias Maj and his father Muhammad Panah, against whom both the Courts below held that the case was not proved (Muhammad Panah died during proceedings before the trial Court). This shows that the witness was capable of implicating persons in a case, calling for a capital punishment, who were innocent. The evidence of deceased, last seen alive in the company of appellant, produced by the prosecution in the case indicated that the complainant/father of the deceased did not object to the deceased proceeding in the company of appellant which suggested that neither the deceased nor his father suspected any harm at the hands of the appellant. P.W.8 in his cross-examination stated that the deceased had come alongwith the appellant and other accused persons to take possession of land. If it was so, there was no obvious reason for the appellant to have fired upon and kill the deceased. No doubt in the F.I.R. The complainant stated that on arrival of Umar Hayat, the deceased abused appellant and said that he was not justified in calling his enemy, on which appellant also abused him and at that the Umar Hayat prompted appellant to kill deceased which resulted in the firing by the appellant on the deceased and his consequential death. However, in their evidence on oath before the trial Court neither the complainant nor Zulfiqar (P.W.8) stated so. On the contrary they stated that Umar Hayat on seeking Nasar told appellant that why he was accompanied by Nasar who was his enemy, thereupon, appellant fired at Nasar deceased. This part of the prosecution story is inherently defective. Firstly, the prosecution failed to disclose any logical reason for presence of Umar Hayat at the field at such odd hours. Secondly, Umar Hayat having a strong motive against the deceased and being himself armed with a pistol, was most likely to take the revenge himself instead of asking the appellant to kill the deceased. Thirdly, there is nothing in the prosecution evidence to show that the appellant had any relation with Umar Hayat or had any other reason to get aroused when Umar Hayat gave him Lalkara to kill the deceased. The learned State Counsel attempted to suggest that the appellant appeared to be a hired assassin. If it was so, the deceased was at the disposal of appellant for a long the and he could have killed him conveniently, instead of waiting for so many people to gather and then finding an excuse to kill him within their sight. This version of prosecution story given by P.W.8 was also in conflict with the medical evidence as he attributed to effective shots by appellant on the deceased from a distance of about 15/16 Karams, while the medical evidence shows that only one fire-arm injury was suffered by the deceased with blackening around the entry wound. The learned Courts below, however, sought corroboration to the testimony of P. W .8 from recovery of crime weapon, which was of no avail in this case. Firstly, the rifle recovered in the case was a licensed arm belonging to the father of appellant. Secondly, P.W.8 in his cross-examination stated that 'the police recovered many empty cartridges from place of occurrence but no empties were sent to ballistic expert to match with he arms recovered from the accused person. In these circumstances, we fail to see, how recovery of rifle in the case could provide corroboration to the testimony of P.W.8. .
8. On account of the above inherent weakness in the prosecution evidence, the case against the appellant was rendered highly improbable and, therefore, even if it is accepted that P.W.8 was present at the scene of offence, his evidence could not be accepted in this case without corroboration from some independent piece of evidence, on account of his interested character as a witness, which was wanting in this case. We, accordingly, allow the appeal, set aside the conviction and sentence awarded by the Courts below and direct that the appellant be set at liberty, unless required by the authorities in some other case. These are the reasons for the short- order announced after hearing the appeal on 8-5-1997.