MARDAN ALI vs GULISTAN AND OTHERS

ORDER

1. ' DORAB PATEL, J.-The private respondents in this petition for leave, to whom we will refer as the respondents, were tried with one Muhammad Afzal alias Raja for the murder of Gakhar Khan by the Sessions Judge, Rawalpindi, and the three respondents were convicted for the murder under section 302/34, P. P. C. However, as it was the prosecution case that there was a blood-feud between the parties, the learned Sessions Judge rightly gave the benefit of the lesser sentence and awarded life imprisonment to these respondents. He, however, acquitted Muhammad Afzal alias Raja.

2. ' The respondents challenged their conviction and sentence in an appeal in the Lahore High Court, which was allowed on 2-12-1979. Hence this petition for leave.

3. ' In order to prove its case, the prosecution examined Mardan Ali, Amir Khan and Muhammad Aslam, as eye-witnesses of the occurrence. It also relied on the recovery of wespons, but Mr. Mujeebur Rehman very fairly, conceded that the recoveries do not advance the prosecution case.

4. He, however, relied on motive and on evidence of the abscondence of the respondents and of the acquitted accused.

5. ' The learned Sessions Judge held that Mardan Ali and Muhammad Aslam had witnessed the occurrence, and he rejected Amir Khan's claim to have witnessed the murder. But, although both Mardan Ali and Muhammad Aslam supported Amir Khan's claim to have seen the occurrence, the learned Sessions Judge was of the view that the evidence of Mardan Ali and especially of Muhammad Aslam was reliable. Now, in view of the admitted blood-feud between the parties, it was not a case in which motive could conceivably furnish corroboration of the ocular evidence ; but the learned Sessions Judge held that the ocular evidence was corroborated by the abscondence of the respondents and of the acquitted accused, and he also held that the ocular evidence was to be preferred to the medical evidence.

6. ' The High Court re-examined the entire evidence and the learned Judge, who heard the appeal was disturbed by an obvious circumstance which escaped the attention of the Sessions Court. The prosecution case was that the assailants had laid on ambush, but the occurrence took place at a bus stop about eight miles from the village in which the respondents and the deceased lived ; yet the prosecution has not led any evidence to show that the respondents know or had any means of knowing that the deceased would be at a bus stop eight miles away from his house where he met his end on the fateful day. Like the learned Judge, we are disturbed by this circumstance and it is sufficient to observe that on a more careful appreciation of the evidence, the learned Judge held that both Mardan Ali and Muhammad Aslam had falsely claimed to have seen the occurrence, and in this connection, he held that the ocular evidence was falsified by the medical evidence which there was no reason to reject. Finally, as the abscondence was for less than a month, and as the prosecution did not produce the proclamations under section 87 of the Criminal Procedure Code, the learned Judge rightly held that the abscondence of the respondents had not been proved.

7. ' Mr. Mujeebur Rehman relied on judgments of this Court in support of the submission that an appellate Court should not lightly interfere with the trial Court's appreciation of evidence, because the `trial Court alone has the opportunity of watching the dameanour of the witnesses. No authority is needed for the proposition that an appellate Court should not lightly interfere with the appreciation of evidence by the trial Court. That is self evident. But, in view of the admitted enmity between the parties, Mardan Ali's evidence is not fit to be accepted without strong corroboration.

8. That is obvious, and even Mr. Mujeebur Rehman did not contest the fact that Mardan Ali's evidence required strong corroboration. But, he submitted that Muhammad Aslam had been held to be a disinterested and reliable witness and that there was no discrepancy between his evidence and the medical evidence, therefore, the High Court had erred in law in rejecting the evidence of Muhammad Aslam.

9. ' Now, even though Muhammad Aslam was a distinterested witness, he admitted that he lived in a village which was about five miles from the place of occurrence, therefore, he was, as observed by the learned Judge, a chance witness. Now, chance witness may also be a witnesses of truth, as submitted by Mr. Mujeebur Rehman, but the question is whether the Sessions Court was just fied in holding that this chance witness was a witness of truth. In the first pace, as we pointed out, like Mardan Ali, Muhammad Aslam also falsely stated that Amir Khan had witnessed the occurrence.

10. Secondly, like the other two eve-witnesses, Muhammad Aslam had implicated Muhammad Afzal eas Raja, who has been acquitted, therefore, this,is another circumstance, which reacts against the veracity of the witness, but which escaped the notice of the Sessions Court. Next, as to the discrepancy between the ocular evidence and the medical evidence, which weighed so heavily with the High Court, learned counsel admitted that according to the medical evidence, the deceased had been hit by one shot, and after some arguments, he conceded that the opinion given by the doctor could not be challenged. However, his submission was that merely because the witnesses had said that three shots had been fired did not mean they had given false evidence. And, he sought to reconcile the discrepancy between the ocular evidence and the medical evidence by stating that the witnesses must have seen the shots being fired but, they were not in a position to see whether the shots fired by the three respondents had hit the deceased or not. The question is entirely of what the witnesses said ail Muhammad Aslam, who, according to learned counsel, was a paragon of truth, has emphatically stated' that the shots fired by such of the respondents had hit the deceased. We regret to say that this evidence is falsified by the medical evidence and we ant unable to accept learned counsel's explanation of the discrepancy between the medical and the oral evidence.

11. ' Additionally, according to the eye-witnesses, the occurrence had taken place in the afternoon on 20-8-1973. But, according to the doctor, the occurrence had taken place about thirty hours before he carried out his post-mortem, and if the doctor's estimate be 'correct, it would follow that the occurrence did not take place at one or one-thirty in the afternoon, as claimed by the eye- witnesses, but several hours earlier. But, if it took place several hours earlier, this would completely falsify the ocular evidence. Now, the learned Judge was of the view that the doctor's opinion of the time of the occurrence was to be preferred to the ocular evidence and this was one of the several grounds which led him to hold that Mardan Ali and Muhammad Aslam had never seen the occurrence.

12. The view taken by tile learned Judge is a reasonable and possible view. But, learned counsel attempted to overcome this difficulty by reliance on authority. Thus, for example, in State v.

13. Muhammad Hassan (1), this Court observed that a doctor could never give a precise estimate of the time when a person had been murdered. We respectfully agree with this view, but the discrepancy between the time of death, as given by the doctor, and the time of the occurrence, as given by the eye-witnesses, is of about seven or eight hours. A doctor's estimate is necessarily approximate and may be erroneous by two or three hours, but it is difficult to believe that a competent doctor would be wrong in his estimate of the probable time of death by seven or eight hours.

(1) 1972 P Cr. L J 116 ' In any case, whatever be the position if the matter had rested here, the question whether the doctor's opinion was to be preferred to that of two eye-witnesses (who had resorted to considerable exaggerations) could have been decided by the post-mortem report, because this report would have shown whether the stomach of the deceased was empty or full and the petitioner should have filed a copy of this report. Mr. Sardar Ishaq, who was present on behalf of the caveator, stated from the Bar that to the best of his recollection, the post-mortem report did not show that the stomach of the deceased contained digested food, and his recollection was that the bladder was not empty. On the whole, this supports the doctor's estimate of the time of the occurrence, because it suggests that murder had been committed early in the morning and not in the afternoon. In any case, as it was for the petitioner to produce the post-mortem report an adverse inference has to be drawn against him for not filing that report, therefore, we agree with the learned Judges that the ocular evidence cannot be accepted to the extent to which it is inconsistent with the medical evidence.

14. ' In these circumstances, it is clear that Muhammad Aslam's evidence itself is not fit to be accepted without corroboration, therefore, it cannot possibly furnish corroboration of Mardan Ali's evidence, tainted as it is by enmity. And, the only other piece of corroboratory evidence was the alleged abscondence of the respondents, but this piece of evidence has rightly been rejected by the learned Judge.

15. ' Mr. Sardar Ishaq drew our attention to the manner in which the F. I. R. Was recorded and pointed out that this was another circumstance which had been explained away by the Sessions Court. But which had impressed the learned Judge very poorly. It is unnecessary to examine this submission, by the learned Judge is based on a careful appreciation of the evidence and because, in the circumstances discussed, we are satisfied that the view taken is a possible and reasonable view.

16. Therefore, as the petition is against an acquittal, no case has been made out for the grant of special leave and the petition is, therefore, dismissed.