ABDUL AZIZ AND Others vs The STATE
This petition arises from a judgment of the High Court dismissing an appeal against the conviction of the petitioners for a double murder under Sections 148 and 302 read with Section 149 of the Pakistan Penal Code 1860. The core legal question concerns the proper appreciation of ocular testimony, delayed naming of accused in the First Information Report, uncorroborated recoveries of firearms, and interested witnesses in a case involving previous land hostility. The Supreme Court granted leave to appeal, holding that the contentions regarding discrepancies in the First Information Report, lack of corroboration for interested witnesses, and improper reliance on unmatched weapon recoveries and motive carried considerable force, necessitating a complete re-appraisal of the evidence. The key principle laid down is that where ocular testimony comes from interested witnesses and is inconsistent with the initial First Information Report, strong and independent corroboration is legally required to sustain a conviction.
- Whether the testimony of closely related and interested witnesses requires strong and independent corroboration in a murder trial?
- Does the omission of an accused person's name from the First Information Report, where the complainant claims prior acquaintance, create serious doubt regarding their subsequent implication?
- Can the recovery of firearms that do not match the crime empties serve as valid corroborative evidence against an accused?
- Whether the Supreme Court will re-appraise evidence when the lower courts fail to follow well-established rules relating to the appreciation of evidence?
- Section 148, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
ASLAM RIAZ HUSSAIN, J---This petition by Abdul Aziz, Abdul Rashid and Misbahuddin is directed against the judgment of the High Court dated 30th October, 1978 whereby their appeal against their conviction was dismissed.
2. The three petitioners were tried alongwith Jafer, Tasgheer, Javedur Rahman and Makkhan under section 148, 302/149, P. P. C. For the double murder of Muhammad Din Shah and his son Muhammad Hussain Shah. (Another co-accused Zaman Khan died during the trial). The learned trial Court acquitted Jafar, Tasgheer and Javedur Rahman but convicted the three petitioners and Makkhan co-accused. All of them filed an appeal before the High Court, which, vide the impugned judgment, acquitted Makkhan but upheld the conviction and sentence of the three petitioners.
3. The occurrence took place on 29-10-72. The F. I. R. Was lodged on the same day at 3-30 p. m. By Muhammad Amir Ali, P. W. 9 son of Muhammad Din Shah and brother of Muhammad Husain Shah, deceased, wherein be mentioned only the names of Zaman Khan and Makkhan, accused but about the remaining accused, he only stated that "six other persons accompanied the aforementioned two accused whose names he did not know but whom he could identify". The investigating Officer recovered some crime empties from the spot -but the fire-arms recovered from Abdul Rashid, Makkhan and Zaman Khan did not match any of the empties recovered from the spot. As such these fire-arms cannot be said to be definitely connected with the crime in question. An identification parade was held in which Amir Ali, P. W. Identified Abdul Aziz, Abdul Rashid, Misbhahuddin, Javedur Rehman and Tasgheer. But later at the trial, he stated that he knew all the six accused, whose names he had not mentioned in the F. I. R. As such the Court did not rely on the identification parade. The prosecution case, therefore, rests mainly on the ocular testimony of Amir Ali Shah, P. W. 9 son of Muhammad Din Shah, deceased, and Mirza, P. W. 10 who is a tenant and Mureed of Muhammad Din Shah, deceased, the motive and the medical evidence.
4. The learned Courts below have; however, relied on the recoveries of the fire-arms from the three accused notwithstanding the fact that they did not match, with the empties found on the spot.
They have also relied on the recovery of the jeep belonging to Zaman Khan at the spot.
5. The learned counsel for the petitioners pointed out firstly that hostility, admittedly, existed between the parties over the possession of land due to which the murder had taken place.
Secondly, that both the eye--witnesses are closely connected with the two deceased. Amir Ali is the son of Muhammad Din, deceased, and the brother of Muhammad Hussain, deceased. Mirza, P.
W. 10 though not related, is not only the tenant of Muhammad Din, deceased, but also his Mureed, which he submitted is a very strong tie. The counsel, therefore, urged that strong and independent corroboration of their testimony was required before they could be relied upon. He submitted further that for convicting Abdul Aziz, Misbabuddin, petitioners, the learned trial Court has relied on the recovery of fire-arms not from him but from other persons, namely Abdul Rashid, petitioner, Makkhan and Zaman Khan co-accused. Out of them Makkhan, from whom one of the fire-arms was recovered, has been` acquitted by the High Court while Zaman Khan had died before the trial.
He also pointed out that these fire-arms had, in any case, not been proved to have been connected with the crime in question. The learned counsel pointed out further that the High Court bad believed the recovery of the jeep of Makkhan Khan as against the petitioners, who are not shown to be connected with it.
6. He then submitted that as far as the motive is concerned. Tasgheer and Javedur Rahman could also be said to share it with the three petitioners. Yet they were acquitted notwithstanding the fact that they were mentioned as having taken part to the incident by both the eye-witnesses. He submitted that similarly if the medical evidence, in the shape of injuries on the person of the deceased, is to be taken as corroborating the testimony of the eye--witnesses, it should have been used for that purpose against the acquitted accused as well. He pointed out further that only two persons, namely, Zaman Khan and Makkhan had been mentioned by Amir Ali, P. W. In the F. I. R. Out of which Makkhan has already been acquitted and Zaman Khan died during the trial. Had he known the remaining accused, including the three petitioners as asserted by him at the trial, he would certainly have mentioned their names in the F. I. R. Their names were, therefore, obviously included later after deliberation and consultation, due to enmity between the parties.
7. We feel that the above mentioned contentions have considerable force: and the entire evidence on the record, therefore, needs to be re-appraised to consider whether the learned High Court had followed the well-established rules relating to appreciation of evidence in the present case.
Leave is; therefore, granted for the above purpose.