UMAR HAYAT And 3 Others vs The STATE

1. MUKHTAR AHMED JUNEJO, J.---Criminal Appeal No.453 of 1993 was filed with leave of this Court by appellants Umar Hayat, Muhammad Afzal, Manzoor Ahmad son of Ghulam Muhammad and Muhammad Azam, while Criminal Jail Appeal No.454 of 1993 was filed with leave of this Court by appellants Saleh Muhammad, Muhammad Tufail and Muhammad Khan.

2. Aforesaid appellants were tried in the Court of learned Sessions Judge, Gujrat for having committed murder of Manzoor Ahmad son of Muhammad. Manzoor Ahmad son of Ghulam Muhammad and Noor Ahmad were alleged to have given blows to the deceased with spears, while rest of the appellants gave Sota blows to the deceased. At conclusion of the trial, the appellants were convicted, for the offences punishable under sections 302 and 148 of P.P.C. They were sentenced to imprisonment for life and to pay fine of Rs.20,000 each or to suffer further R.I. For four years for the offence punishable under section 302 read with section 149 of P.P.C. For the offence under section 148 of P.P.C., the appellants were sentenced to suffer R.I. For one year. They were given the benefit of section 382-B of Cr.P.C. Under the impugned judgment, the Lahore High Court maintained the conviction as well as the sentence and dismissed the revision petition for enhancement of the sentence.

3. Mr. Ehsanullah Khan 'Lilla, learned counsel for the appellants argued that the F.I.R. Was lodged after delay and deliberation, that the ocular evidence was interested and unreliable, that the mare by which the deceased and the first informant were going to their field, was not recovered by police and was not examined by a veterinary doctor, and lastly that the motive alleged was weak and self-contradictory. It was further argued that the deceased had received as many as forty injuries and had the eye-witnesses been caused. Eye-witnesses Sultan Ahmad P.W.7 and Sikandar P.W.8 were said to be first cousins of the deceased. It was also argued that the torch, on the basis of which the incident was seen, was not produced before police and that the Patwari who prepared the sketch of the Wardat was not shown the Dera where the deceased was going, with informant Sultan Ahmad at the the of the incident.

4. Mr. Javaid Aziz Sindhu, learned Advocate for Advocate-General, Punjab for State supported the conviction and argued that three Sotas were recovered from appellants Muhammad Afzal, Manzoor Ahmad and Umar Hayat and that the ocular evidence was corroborated by the medical evidence and by the evidence of motive.

5. The only ocular evidence in the case was given by complainant Sultan Ahmad P.W.7 and Sikandar P.W.8. Sultan Ahmad claimed to be accompanying deceased Manzoor Ahmad on horseback for going to their Dera. He added that on the way near sugarcane field near SaeeD, the appellants emerged from the sugarcane field duly armed with Sotas and Brachhis and they gave blows to the deceased who fell down from the back of the horse. The incident allegedly took place at 8-30 p.m.

6. And Sultan Ahmad did not state if he was carrying any torch or if there was any light at the spot. He said that the incident was also witnessed by Sikandar P.W.8 and Nadir. Sikandar P.W.8 claimed that he was accompanying Nadir to his village Selma when on the way he saw the deceased and Sultan Ahmad P. W .7 on his torch. That Saleh Muhammad emerged and caught reins of the mare and Umar Hayat gave Sota blow on head of the deceased and subsequently other appellants also gave blows to the deceased, who fell down from the mare. The deceased was said to have been removed to his house where he died.

7. Both the eye-witnesses are admittedly related inter se and with the deceased. Sikandar said in his cross-examination that his father was cousin of Nadir's mother and the deceased was his maternal uncle. Sultan Ahmad P.W.7 said in cross that the deceased was his paternal as well as maternal cousin and that wife of the deceased was his sister's daughter. Sultan Ahmad added that P.W. Nadir was his maternal cousin while Sikandar was son of sister of deceased's father. In this situation, there was need for corroborative evidence. It is a settled position of law that evidence of a partisan witness requires corroboration before the same is relied on for conviction. In the case of Muhammad Nawaz v. Abdul Khaliq and others (1971 SCM R 500) the prosecution witnesses were not only related inter se but they were also related with the deceased and it was held that such evidence required some corroboration to ensure that the witnesses were speaking the truth. In the case of Sharif and another v. The State (1973 SCM R 83), it was held that where majority of the eye- witnesses can be described as interested and partisan it is necessary to look for satisfactory corroboration for connecting the accused with the crime. The question as to what sort of corroboration should be their absence answered in the case of Nazir and others v. The State (PLD 1962 SC 269), where it was held that corroboration can be afforded by anything in the circumstances of a case, which tends sufficiently to satisfy the mind of the Court that the witness had spoken the truth. But it was not possible to lay down as to what circumstances would be sufficient for corroboration.

8. The evidence of motive was given by the complainant some witness viz. Sultan Ahmad. Sultna Ahmad deposed that 4/5 years prior Umar Hayat's mother promised to give her daughter Mst.

9. Zubaida in marriage to deceased Manzoor Ahmad, but to years prior she backed out and thereafter deceased married else--where and so also Mst. Zubaida. Giving the reason of murder of Manzoor Ahmad, Sultan Ahmad added that Umar Hayat's mother refused to pay back the -mint she had received from deceased Manzoor Ahmad for giving him her daughter Mst. Zubaida. This was not stated by Sultan Ahmad in his F.I.R. Exh. PD. He denied his earlier statement in the F.1.R. That Mst. Zubaida went to Manzoor Ahmad deceased and he returned her in response to such demand by her parents. Sultan Ahmad said in his F.I.R. That deceased married for the second the, but he retracted from such statement in Court. Hence on the point of motive, Sultan Ahmad is contradicted by his own F.I.R. Sikandar P.W.8 did not say anything about the motive.

10. There is force in the contention that the torch on the basis of which the appellants were identified was not produced before the police. The recovery of three Sotas is of no consequence because they were not stained with blood.

11. In the circumstances, it is crystal clear that there was no sufficient evidence for conviction of the appellants on the charge carrying capital sentence. We, therefore, accept these appeals, set aside the conviction and sentence of the appellants and acquit them and order that they be released forthwith, if not required in any other case. Such short order was passed on 8-4-1994 and these are reasons for the same.