ABDUL GHAFOOR Versus STATE

IFTIKHAR MUHAMMAD CHAUDHARY, J.--- This appeal by leave of this Court has been filed against the judgment, dated July 31, 1990 passed by Lahore High Court whereby death sentence awarded to appellant by Additional' Sessions Judge at Narowal was converted into life imprisonment with fine of Rs.5,000 or in default thereof to undergo R.I. for two years. Appellant was also directed to pay another amount of Rs.5,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof to further undergo six months' rigorous imprisonment.

2. Briefly stating the facts of the case are that on 5th of September, 1986 at 5-30 p.m. appellant Abdul Ghafoor armed with 7 MM Rifle had fired at Safdar Ali with intention to cause his death who subsequently succumbed to the fire-arm injuries. As such vide F.I.R. No. 141 of 1986 of Police Station Zafarwal District Sialkot he was involved in a case under section 302,P.P.C. alongwith co-accused Abdul Ghani son of Karim Bakhsh, Muhammad Younas son of Muhammad Iqbal, Muhammad Yaqub son of Allah Ditta, Allah Rakha son of Hussain Bakhsh, Muhammad Boota son of Allah Rakha, allegedly involved for hatching a conspiracy and abetting commission of crime.

Learned trial Court read over the charge to the accused facing trial on 21st March, 1987 under section 302/109, P.P.C. As they did not plead guilty to the charge, therefore, prosecution to substantiate accusation led evidence of P.W. Shafiuddin, P.W. Mukhtar Ahmed, P.W. Muhammad Anwar, Patwari, who produced site plan Exh.P/B and Exh.P.B-1. P.W. Nazir Ahmed, P.W. Muhammad Sharif son of Umer Din, P.W. Muhammad Sharif son of Imam Din (eye-witnesses), P.W. Dr. Fayyaz Ahmed Ranjah, Medical Superintendent, Tehsil Headquarter Hospital, Narowal and P.Ws. Manzoor Hussain, S.I./S.H.O. Police Station Noorkot, Teshil Shakar Garb. After conclusion of prosecution evidence statements of accused were recorded under section 342, Cr.P.C. wherein they denied the prosecution case. D.W. Faqir Muhammad son of Fateh Din appeared to make statement on behalf of accused facing the trial.

3. Learned Additional Sessions Judge, Narowal vide judgment, dated 23rd February, 1988 concluded that appellant Abdul Ghafoor has committed the crime, as such, he was convicted under section 302, P.P.C. and was sentenced to death with fine of Rs.5,000 and in default of payment of the fine to further undergo R.I. for two years. As far as co-accused Abdul Ghani and others who faced trial with the appellant were concerned, they were acquitted of the charge by giving them benefit of doubt.

4. Accordingly Murder Reference was sent to Lahore High Court at Lahore for confirmation which was registered as Reference No.78 of 1988. Appellant Abdul Ghafoor also preferred Criminal Appeal No.459 of 1988. Learned Appellate Court converted the death sentence into life imprisonment with fine of Rs.5,000. In addition to it appellant was also directed to pay compensation of Rs.5,000 to the heirs of deceased under section 544-A, Cr.P.C. or in default thereof to suffer 6 months' R.I.

5. Leave was granted to appellant to file appeal on 21-12-1994 to consider following questions:--

"No doubt the learned Judges held in the impugned judgment that the evidence of the two P. Ws. who were related to the deceased was confidence-inspiring but in view of the deep-rooted enmity between the parties it requires consideration whether the principles of safe administration of justice in the criminal cases were followed in the case while appraising the prosecution evidence. "

6. It may be noted that criminal petition for leave to appeal was found to be barred by 1173 days and in the leave granting order the question of limitation was left open for consideration at the hearing of the appeal.

7. Learned counsel for the appellant/convict contended that there is long-rooted enmity between the parties, therefore, it was incumbent upon the learned High Court to have placed the prosecution evidence in juxtaposition with statement of D.W. Faqir Muhammad because latter's testimony has been disbelieved without assigning any cogent reasons and if this Court pleases to accept the defence evidence the appellant will not be held responsible for the commission of the offence because the incident had not taken place in the manner as it has been disclosed by the prosecution. As according to testimony of witnesses Safdar Ali was killed later on when proceedings of Punchayat come to an end. To elaborate his arguments he further contended that the firing had not taken place at the place where the proceedings of Punchayat were going on because no reasons have been assigned for not taking into possession the three empties from place of incident fired by Abdul Ghafoor from his 7 MM Rifle. Thus, according to him the evidence of highly interested witnesses P.W.5 Muhammad Sharif son of Umer Din and P.W.6 Muhammad Sharif son of Imam Din was not worthy of acceptance being contrary to actual facts of the case.

8. Mrs. Anwar Raza, Advocate, learned State Counsel contended that there is no dispute that Punchayat proceedings were held at place where incident took place because after its conclusion the notables/heads were going to announce the contents of the compromise between the parties and in the meanwhile accused Abdul Ghafoor who was equipped with 7 MM Rifle fired upon Safdar Ali. As far as place of incident is concerned it is the same from where blood-stained earth was collected beneath the dead body lying at the spot. Bedsides D.W. Faqir Muhammad's evidence is not believable because during cross-examination of both the prosecution witnesses P.W.5 and P.W.6 his presence was not shown nor it was stated that deceased Safdar Ali was killed at different place from the place where the proceedings of Punchayat were going on.

9. We have carefully examined the evidence available on record. In the instant case enmity between complainant and accused party is not disputed which has ensued between them about nine months prior to the incident, which has given rise to instant proceedings. The background as stated is that a case was registered by Allah Rakha under sections 307, 325, 148 and 149, P.P.C. at Police Station Zafarwal wherein he alleged that Muhammad Younas was injured by the complainant party and the case was pending in the Court. It is the version of the complainant that on account of aforesaid case, appellant Abdul Ghafoor, Allah Rakha, Muhammad Boota, Muhammad Younas, Abdul Ghani and Muhammad Yaqub hatched a conspiracy and on the pretext of compromise in the matter between them, killed deceased Safdar Ali to avenge the injuries caused by complainant side to Muhammad Younas. Therefore, in view of previous enmity between the parties the evidence of P.W. Muhammad Sharif son of Umer Din and P.W. Muhammad Sharif son of Imam Din has to be considered carefully keeping in view the principles laid down by this Court from time to time for the safe administration of justice. It is a recognized principle of law that in criminal administration of justice evidence furnished by interested witnesses related to victim or deceased cannot be discarded merely for the reason that the witness has relationship with the victim. However, the Courts have emphasized that in such-like situation efforts must be made to seek corroboration from other evidence available on record. As far as corroboration is concerned it does not mean that it should come from an independent witness but anything in the circumstances which tends to satisfy the Court that the witness has spoken truth can safely be considered to be corroborative evidence. Reference is made to the case of Nazir and others v. The State (PLD 1962 SC 269). In the case of Din Muhammad v. The Crown (1969 SCMR 777) it was held that there could be case in which the witness is closely; related to the deceased but still his evidence has been accepted because there was consistency in his testimony and it was getting corroboration from other pieces of evidence available on record. With reference to this principle in our opinion other pieces of evidence for seeking corroboration can be medical evidence, recovery of incriminating articles including empties etc. as well as the site plan which was prepared by Investigating Agency at the pointation of the witnesses or the person who has seen the incident. In case, of Ali Khan v. The State (PLD 1980 SC 109) this Court while examining alike proposition held, that the theoretically even the statement of interested witnesses is capable of being accepted without corroboration but such would be an exceptional witness or witnesses. In this context reference may also be made to the case of Allah Ditta and others v. The State (PLD 1970 SC 734) as well as Muhammad Akber v. Muhammad Khan and others (PLD 1988 SC 274). In last mentioned citation testimony furnished by three witnesses was considered to be natural because they were returning alongwith deceased to their houses after attending the Court of Magistrate but were confronted at the place of occurrence by accused person and they suffered serious injures at their hand. In view of these facts it was held that under the circumstances the presence of these witnesses was natural, therefore, they were the best possible witnesses who could have deposed about the incident.

Likewise in the case of Iqbal alias Bhalla and 2 others v. The State (1994 SCMR 1) the expression "interested witness" was defined to be an interested witness who has a motive for falsely implicating an accused, is a partisan witness and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accuse.

11. Now turning to the facts of the instant case as far as P.W.5. Muhammad Sharif son of Umer Din and P.W.6 Muhammad Sharif son of Imam Din are concerned though they are closely related to deceased Safdar Ali but at the same time their evidence is worth consideration because they have fully supported the prosecution case. A careful perusal of their statements suggests that they furnished consistent, coherent and trustworthy evidence against convict Abdul Ghafoor. However, in view of the submissions of the learned counsel for the appellant it is required to be tested whether their evidence can be disbelieved being interested witnesses qua the evidence furnished by D.W. Faqir Muhammad. We have carefully examined their statements in order to satisfy ourselves to ensure safe administration of justice. It may be noted that as far as holding of Punchayat on the day of incident is concerned it is not disputed. Although the case of the prosecution is that proceedings of Punchayat were arranged for the purposes of hatching a conspiracy to commit murder of Safdar Ali and for this purpose many other persons were involved by the complainant party and in this behalf P.W. Nazir Ahmed was produced in the Court. But as far as hatching of conspiracy for committing the murder of Safdar Ali is concerned that was disbelieved as the co-accused of the appellant have been acquitted of the charge, therefore, we have-to examine whether the presence of P.W.5 Muhammad Sharif son of Umer Din and P.W.6 Muhammad Sharif son of Imam Din can be accepted at the place of incident. In this behalf reference may be made to the site plan Exh.P.F. produced by P.W.8 S. Manzoor Hussain. As per its keynotes both the witnesses have seen the incident from two different angles. Similarly presence of dead body has also been shown at point "ALIF". According to which it was lying in the lands of Abdul Ghani son of Karim Bakhsh. This document further reveals that Abdul Ghafoor had also fired upon Safdar Ali within the same vicinity. Therefore, presence of dead body has been established in the field of Abdul Gham where the same was seen lying by P.W.5 Muhammad Sharif son of Umer Din and P.W.6 Muhammad Sharif son of Imam Din. In addition to it blood-stained earth was also taken from the same field. At this juncture reference to the statement of D.W. Faqir Ahmed may also be made who has given different story, which is not supported by any iota of evidence on record.

12. There is yet another aspect of the case, which requires consideration regarding non-recovery of empties from the place of incident. In this behalf learned State Counsel gave explanation that there was dust, therefore, empties might have missed in the same. But even if for sake of arguments this contention is not believed the fact remains that prosecution case is supported by other important pieces of evidence discussed hereinabove. Therefore, under these circumstances non-recovery of empties is not fatal to the prosecution case.

13. In view of above discussion we are of the opinion that testimony of P.W. Muhammad Sharif son of Umer Din and Muhammad Sharif son of Imam Din have been rightly accepted qua the statement of D.W. Faqir Muhammad by the learned High Court.

14: As it has been observed hereinabove that appeal is barred by time and in leave granting order it was left open to consider this point at the time of final hearing, therefore, for the reasons that no case is made out on merits, we are not inclined to condone the delay in the absence of any cogent reasons.

Thus, we are-of the opinion that appeal merits dismissal.

N.H.Q./A-9/S Appeal dismissed.