' ABDUR REHM AN KHAN. J.---The appellant alongwith four others was charged in F.I.R. No,275 lodged by Haider Beg (P.W.6) on 16-5-1991, in Police Station Civil Lines, Gujrat, for the murder of Adalat Beg.
All the five accused were tried by the learned Additional Sessions Judge, Gujrat, and by judgment, dated 11-8-1993, the appellant was found responsible for the murder of Adalat Beg and while convicting him under section 302, P.P.C., sentenced him to death as "Qisas". The co-accused were acquitted. The appellant challenged his conviction and sentence in Appeal No,630 of 1993 in the High Court and the complainant side also filed revision against the acquittal of the acquitted accused. Murder Reference was also put up before the High Court for confirmation. By the impugned judgment, delivered on 24-10-1995, a learned Division Bench of the High Court maintained the conviction of the appellant under section 302, P.P.C., but converted the sentence of death into life imprisonment as "Tazeer". The appellant was also ordered to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. Which on the recovery would be payable to the legal heirs of the deceased or for failure to pay, the appellant shall undergo R.I. For six months. Benefit under section 382-B, Cr.P.C. Was extended to the appellant. The revision petition of the complainant was dismissed.
2. In this Court leave to appeal was granted in these terms:-- "Learned counsel appearing in support of this petition has contended that the eye-witnesses in this case were not only closely related to the deceased but were also admittedly inimical to the petitioner and were chance witnesses who had no plausible explanation for their presence at the time and place of occurrence. It is further contended that four co-accused of the petitioner (his son and three brothers) were acquitted by the trial Court on the testimony of these very witnesses and their acquittal has not been interfered with by the High Court. For all these reasons, the learned counsel argued, implicit reliance could not be placed on the ocular evidence of these witnesses as against the petitioner in the absence of any independent corroboration which is not forthcoming from the record. According to the learned counsel, the medical evidence rather than providing any corroboration to the eye witness account contradicts/belies it."
3. Haider Beg (P.W.6), while narrating the incident which led to the murder of Adalat Beg stated, that he alongwith his wife Mst. Nazran Begum, his nephew Adalat Beg (deceased), Aziz Beg and Liaquat Beg started towards Mangowal for harvesting crop. Adalat Beg went ahead on the bicycle to engage a 'Tonga' for them while they followed him on foot. When Adalat Beg reached near graveyard, there Ashraf Beg armed with 'Danda'. Safdar Beg armed with Carbine. Asghar Beg (appellant) armed with shot gun and Younis Beg having 'Danda' emerged. Asghar Beg (appellant) raised Lalkara that he would avenge, the murder of his brother and simultaneously fired at Adalat Beg hitting him on his right flank and he fell from the cycle. The complainant alongwith his companion followed the accused, but Ashraf Beg warned them not to go near them otherwise they would be killed. Safdar Beg and Asghar Beg then fired in the air and thereafter, all managed to escape.
4. Motive for the crime was that Afzal Beg, brother of the appellant, was murdered for which the deceased, the complainant and other four persons were charged, but all of them were acquitted.
5. At the trial the complainant appeared as P.W.6 and almost reiterated the allegations made by him in the F.I.R. The other witness who gave the ocular account of the incident, is Aziz Beg (P.W.7). He stated that he alongwith the complainant, deceased and Mst. Nazran Begum were proceeding from their village to Mangowal and when they reached the graveyard, he asked Adalat Beg (deceased) to fetch a 'Tonga' and so he went on cycle to bring it. He had hardly covered a distance of 15 feet when Asghar Beg (appellant), Akbar Beg, Safdar Beg, Younis Beg and Ashraf Beg emerged from the graveyard. Out of them, the appellant was armed with shot gun, Safdar Beg with carbine while the remaining had 'Dandas'. The appellant raised Lalkara that they were there to take revenge for the murder of his brother and at the same time he fired at Adalat Beg which hit him on his back who fell down. Safdar Beg accused then fired in the air. The appellant threatened them not to come near them otherwise they would be done to death. Adalat Beg died on the spot. The Doctor who had conducted postmortem on the dead body of the deceased, was examined as P.W.B. This witness on the examination, found the following injury on the person of the deceased:-- "There was a fire arm wound of entry about 3 x 2 c.m. Back of chest about 12 c.m. Above right iliac bone. Wound was gutter shaped."
' P.W.9 is the Investigating Officer who explained the various steps taken by him to complete the investigation.
6. All the accused when examined under section 342, Cr.P.C. Pleaded innocent and false involvement on account of previous enmity.
7. The appellant examined three witnesses in defence. D.W.1 is Record Keeper, A.B.S. Hospital, Gujrat, who produced the record relating to Asghar Beg (appellant) in respect of his medical examination.
D.W.2 is Doctor Syed Tallat Iqbal who examined the appellant on 20-2-1992 when he was brought to the hospital from jail. He went through the record produced by D.W.I. He stated:-- "My observations in respect of medical examination conducted by me upon the above person are as follows:-- ' He complained of:--
(1) Pain in middle of chest,
(2) Palpitation,
(3) Sinking of heart.
(4) Tremouring of both hands.
' In the opinion of the board, he should be referred to Cardiology Department. Mayo Hospital Lahore for Exercise Tolarnace Test and other investigation and Expert Opinion."
' He again medically examined the appellant on 4-3-1992, as he was referred from Jail to the hospital for this purpose. He referred him to Dr. Haider Asad Ullah Malik, Medical Specialist, for his opinion on the tremours of his hands and for cardiac problem. D.W.3. Is Dr. Haider Asad Ullah Malik, Medical Specialist A.B.S. Hospital, Gujrat, who examined the appellant for his alleged ailment. He stated that "the patient was in handcuffs at that time. He was complaining of chest pain, restlessness, heart sinking, tremors hands, three years duration. So far his chest pain, I referred him to the Cardiologist, Regarding his tremors. I was not convicted that these are abnormal, so the report was sent to M.S. By me".
8. At the trial prosecution relied for conviction on the following evidence:--
(a) Ocular evidence.
(b) Medical evidence,
(c) Recovery, and
(d) Motive.
9. The learned trial Judge believed the testimony of the eye witnesses in respect of the appellant and found it sufficient for his conviction, but he did not consider it enough for conviction of the other. Accused. It was also held that the motive as alleged in the F.I.R. And in the Court statements of the eye-witnesses, stood proved. The medical evidence was found in consonance with the statements made by the eye-witnesses about it. Non-recovery of crime weapon was considered insignificant, as the Court was of the view that nothing could turn upon it. The defence produced by the appellant was found insufficient to prove that he was suffering from tremor of his hands which could prevent him from using the weapon or that he had any heart ailment. The learned Division Bench of the High Court agreed with the conclusion and the lining of reasons in support of his view taken by the trial Court.
10. The learned counsel appearing for the appellant argued that the witnesses who gave ocular account in this case, were interested and partisan and, therefore, in absence of any corroboration their testimony could not form safe basis for a finding of guilt, particularly, when on the same evidence the co- accused were acquitted. This is too a general and sweeping argument which cannot prevail in all circumstances. It is neither a rule of law nor an inflexible principle of universal application that the deposition of an interested witness must in all circumstances be discarded, if it is uncorroborated by other evidence. It is also not the requirement of any law that the testimony of disinterested and independent witness must in all events be accepted. It has been repeatedly held that every criminal case must be adjudged on its own facts and that it is the intrinsic probative value of the evidence of a witness which must be considered and taken into consideration for conviction.The learned counsel was required to have shown some flaws, inconsistencies, unreasonableness or improbabilities in the evidence of the two eye-witnesses on the basis of which it could be argued that it would not be safe to make such evidence a foundation for finding of guilt. This argument was also advanced before the learned Judges in the High Court who while rejecting it referred to the following observation in a case captioned "Roshan and 4 others v. The State" (PLD 1976 Supreme Court 557):-- "There is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all taken into account the testimony of the interested witness. Secondly, if the presence of a witness if proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where the Supreme Court has upheld the conviction of the accused based entirely on the testimony of the 'interested' witness."
11. The learned counsel then argued that there is difference between medical evidence and ocular account. In this context he referred to the statement of P.W.8 (Medical Officer) who had performed post-mortem over the dead body and who had stated "as the injury does not carry any blackening on it so the shot might have been fired beyond a range of 6 feet". It was pointed out that P.W.6 has shown this distance as one foot while P.W.7 has given it as 5 feet. It is to be noted that in the site plan the distance from which the accused fired at the deceased, has been indicated as 6 feet.
Nothing substantial turns on this argument; because, firstly, there is no material difference in the two sets of evidence; and secondly, eye-witnesses cannot be expected to give the distance with that much accuracy, because they are not supposed to measure it, but they only gave it by estimate and guess. It was in this context also argued that the incident occurred at 7 a.m. And before that the villagers do take breakfast when they leave for work, but in spite of it the stomach of the deceased was found empty. However, when the learned counsel was referred to the statements of both the eye-witnesses wherein they had stated that they had not taken breakfast before leaving the house, then he candidly did not press this point. It was further argued that the deceased had been murdered at night time, because if he had been murdered at 7.00 a.m., the other persons of the locality would have been there to witness the incident. This argument has no sound basis and is just based on conjectures. The prosecution has produced natural witnesses who deposed that the occurrence took place at 7.00 a.m. And nothing could be shown to discredit them. The learned counsel in the end referred to the evidence of D.Ws.1 to 3, examined by the appellant to prove his illness; but the perusal of the statements of these witnesses reveals that they have not, supported the appellant. D.W.3 stated "Regarding his tremors, I was not convinced that these are abnormal, so the report was sent to M.S. By me".
12. We are of the view that the ocular account of the incident as against the appellant is consistent and truthful and finds support from the medical report. The evidence of the eye-witnesses against the appellant cannot be discarded merely because the co-accused could not be convicted on the basis of this evidence. Out of the three acquitted accused, one was allegedly armed with carbine and the other two with sticks. But none of them has been attributed any active role in the commission of the offence; because, the one armed is alleged to have fired in the air while the other two had committed no overt act. As against the appellant, the charge is that he fired at the deceased hitting him on back of chest which resulted in his death.
We find no legal flaw, misreading or non-reading of any material evidence and, therefore, while agreeing with the finding of guilt rendered by the trial Court and confirmed by the High Court, dismiss this appeal.