MUHAMMAD EHSAN vs THE STATE

' HAMID ALI MIRZA, J.--- This criminal appeal with leave of this Court is directed against judgment, dated 10-9-1991 in Criminal Appeal No,1394 of 1999 passed by learned Single Judge of the Lahore High Court, Lahore, whereby the said appeal was dismissed maintaining the judgment, dated 17-5- 1999 passed by Sessions Judge, Khushab, thereby the appellant was convicted under section 302(b), P.P.C. And sentenced to undergo life imprisonment with direction to pay sum of Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to further undergo six months' imprisonment.

2. Brief facts of the case are that appellant along with acquitted co-accused Dost Muhammad, Gul Zaman, Dost Muhammad, Atta Muhammad and Gulzar Muhammad was charged that he along with other acquitted co-accused on 13-7-1998 at about 3-00 p.m. In the area of Mangwal while armed with deadly weapons viz. .12 bore guns formed unlawful assembly, committed rioting for commission of offence of murder and that subsequently on the same date and time and place appellant along with acquitted co-accused in prosecution of common object of unlawful assembly in a premeditated manner caused fire-arm injuries with .12 bore gun upon the person of Noor Zaman as a result of which he died. The said charge was read over to the appellant and the acquitted accused to which they denied and stated to be tried, consequently, prosecution examined as many as ten witnesses. After close of prosecution side the appellant and acquitted co-accused were examined under section 342, Cr.P.C. Wherein they denied the commission of charged offences and stated that they have been implicated falsely due to enmity of deceased.

After recording of evidence and hearing learned counsel for the parties, learned Sessions Judge vide judgment, dated 17-5-1999 convicted the appellant under section 302(b), P.P.C. And sentenced him to life imprisonment and directed him to pay compensation of Rs,50,000 to the legal heirs of deceased or in default to suffer six months imprisonment. Co-accused Gul Zaman, Dost Muhammad, Atta Muhammad and Gulzar Muhammad were acquitted having found them not guilty of the charged offence. The appellant preferred Criminal Appeal No,1394 of 1999 before the Lahore High Court, Lahore which was dismissed vide impugned judgment, hence this appeal with leave of this Court.

3. We have heard learned counsel for the appellant and perused the record minutely.

4. Contention of learned counsel for the appellant is that there is only testimony of Mst. Khatun Bibi, P.W.4, uncorroborated by any independent evidence which testimony was not sufficient to base conviction. He also submitted that there has been delay in lodging F.I.R. He placed reliance upon Atta Muhammad and another v. The State 1995 SCM R 599 in support of his contention.

5. We do not find any merit and substance in the said contention.

6. It is true that there is only ocular testimony of P.W.4-Mst. Khatun Bibi corroborated by medical evidence, P.W.6 Dr. Muhammad Sarfraz Sial. The fact that there is only ocular testimony of one P.W.

Which is unimpeachable and confidence-inspiring corroborated by medical evidence would be sufficient to base conviction. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that as it may as in the present case eye-witness account which is unimpeachable and confidence- inspiring character and is corroborated by medical evidence. It may be observed that incident has occurred during day time at 3-00 p.m. Which fact is not denied considering that blood-stained earth was recovered from the place of occurrence so also dead body of Noor Zaman was removed to the hospital from the said place. It may also be observed that testimony of P.W.4 Mst. Khatun Bibi, who was widow of deceased Noor Zaman was present at the place of occurrence, has not been denied considering that it has not been challenged in the cross-examination. Mst. Khatun Bibi has specifically attributed the role of opening fire by appellant Muhammad Ehsan hitting at the back of ear of deceased Noor Zaman. Sikandar Hayat and Sher Zaman were not examined by the prosecution as they were won over by the appellant side and because of their being close relationship with the appellant/accused and co-accused. Non-examination of above two witnesses would be of no consequence upon the prosecution case as such no adverse presumption could be raised in the said respect. The ocular testimony of P.W.4 Mst. Khatun Bibi is unimpeachable and confidence-inspiring and her veracity could not be discredited in the lengthy cross-examination. Mere fact that she was widow of deceased would not itself be sufficient to hold that she was interested witness considering the fact that she had no enmity with the appellant or co-accused. Even if deceased had enmity with the C appellant and acquitted co-accused would not have any serious effect upon the credibility and reliability of the testimony of P.W.4 Mst. Khatun Bibi. It may also be observed that incident had occurred at 3-00 p.m. And Noor Zaman when injured was immediately removed by Mst.Khatun Bibi to hospital in order to save his life, therefore, after getting her husband admitted in the hospital she went to lodge report at 9-00 p.m. When the police station was ten kilometers away as such sufficient explanation has been furnished by the complainant P.W.4 Mst. Khatun Bibi, consequently there would be no adverse inference in the said respect that the F.I.R. Was lodged after deliberation and was concocted. On perusal of medical evidence it would appear that P.W.6 Dr. Muhammad Sarfraz in his testimony has deposed that the deceased had sustained two injuries when one was on the back of left ear which was wound of entry caused by fire-arm. Whereas No,2 injury was contused swelling on the right temple region which was found to have been caused by blunt object. So far first injury is concerned admittedly as per ocular testimony it was caused by appellant with his .12 bore gun while the second injury was observed by the Court below learned Sessions Judge it could be caused by fall on the ground as it has come on record that on receipt of fire-arm injury deceased fell on the ground and therefore, deceased sustained injury No,2.

7. It will not be out of place to mention that in case P.W.4 would not have been truthful witness she could have conveniently assigned/ attributed the said injury to anyone of the co-accused but she did not attribute or assign the said injury No,2 to anyone of the acquitted co-accused. This Court has time and again held that even testimony of single witness if found to be reliable, confidence- inspiring and unimpeachable same would be sufficient to base conviction. It is not necessary that in each and every case there should be more .Than one witness for the purpose of basing conviction considering that fact also that is not the quantity of evidence but the quality of evidence on the basis of which conviction is to be based. Facts of the case-law cited are quite different and distinguishable to the facts of the instant case, therefore, is inapt to facts and circumstances of instant case, hence it would not help the appellant in any case, considering also that in the instant case medical evidence has fully corroborated the ocular testimony of P.W.4 whose testimony was unimpeachable and confidence-inspiring.

8. We do not find any misreading or non-reading of evidence or legal infirmity in the impugned judgment passed by learned Single Judge and the Court below in the appraisal of evidence or misconstruction of law, therefore, finding no merit in this appeal same is dismissed.