2007 SCMR 1438

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, M. Javed Buttar and Hamid Ali Mirza, JJ

Mst. SHAHNAZ BIBI—-Petitioner

Versus

MUHAMMAD LIAQUAT alias KHITTA and 2 others—-Respondents

Criminal Petition No.80 of 2007, decided on 13th March, 2007.

(On appeal from the judgment, dated 12-1-2007 passed by Peshawar High Court, Abbottabad Bench in Criminal Appeal No.85 of 2001).

(a) Penal Code (XLV of 1860)—

—-S. 302/34–Constitution of .Pakistan (1973), Art.185(3)—Appeal against acquittal—Ocular account was furnished by wife and son of the deceased who being inmates of the house were certainly natural witnesses, but the essential question for determination was regarding the time and manner the occurrence had taken place and identification of the assailants at the spot—Prosecution version regarding the time of death was contradicted by medical evidence which had strongly suggested that the occurrence had taken place during the night and the possibility that culprit was not identified in the dark, could not be ruled out—Enmity between the parties was admitted and interested witnesses could not safely be relied upon without independent corroboration, which was not available—Rule of corroboration, being rule of abundant caution, might not be necessarily applied in each case, but where direct evidence did not inspire confidence and was of doubtful character, Court must follow the rule of corroboration for safe administration of justice—Accused had earned double presumption of innocence and concurrent findings of two Courts did not require any interference by Supreme Court against their acquittal on the basis of partisan ocular testimony– Leave to appeal was declined to complainant in circumstances.

(b) Penal Code (XLV of 1860)—

—-S. 302/34—Evidence—Rule of corroboration, applicability of—Rule of corroboration, being rule of abundant caution, may not be necessarily applied in each case, but in a case in which direct evidence is not confidence-inspiring or is of doubtful character, Court must follow the rule of corroboration for safe administration of justice.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 13th March, 2007.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.— This petition under Article 185(3) of the Constitution has been directed against the judgment dated 12-1-2007 passed by the Peshawar High Court, Abbottabad Bench whereby Criminal Appeal No.85 of 2001 filed by the petitioner against the acquittal of respondents Nos.1 and 2, from the charge under section 302/34, P.P.C. by the Additional Sessions Judge, Abbottabad, vide judgment, dated 14-11-2001, has been dismissed.

2. The facts of the case in small compass, leading to the filing of instant petition arc that on 15-12-1999 Mst. Shahnaz Bibi widow of deceased Mansar. Zaman, lodged report at Police Station Nara, District Abbottabad that on that day at about 5-45 a.m. she after taking Shehri was busy in washing the utensils whereas her husband was lying on a cot and her minor son and daughter namely, Junaid and Irrum were sitting on her side when Humayun son of Sarwar armed with kalashnikov, Liaquat alias Khitta son of Safdar Khan armed with pistol along with three other unknown person armed with rifles suddenly entered in their house. Humayun accused directed her deceased husband to hand over whatever he.had and on reply of the deceased that he had nothing to give them, Humayun and Liaquat simultaneously after firing at the deceased, decamped from the scene of occurrence along with their companions and on their hue and cry, Saleem Raza, brother of deceased, along with Shaukat Mehmood and few other persons, reached at the spot. The deceased in injured condition, narrated the incident to Saleem Raza and later while being taken to the hospital, succumbed to the injuries. The motive for the occurrence was criminal litigation and dispute over the property between the parties. The prosecution produced thirteen witnesses in support of the charge whereas accused in their statements under section 342, Cr.P.C. denied the charge and pleaded false implication due to the enmity. The learned trial Judge acquitted the accused by giving them benefit of doubt and their acquittal was further maintained by the High Court in appeal filed by the complainant.

3. Learned counsel for the petitioner without pressing this petition against Muhammad Wan, respondent No.2 herein, has contended that the ocular account furnished by the .most natural witnesses, was alone sufficient to prove the charge against Liaqat beyond any shadow of doubt but their testimony was disbelieved for minor discrepancies and contradictions in the prosecution evidence. Learned counsel argued that active participation of Liaqat with the specific role of firing at the deceased, was proved beyond doubt but the trial Court as well as the High Court without giving clue weight to the strong and unimpeachable character of the evidence of eye-witnesses, acquitted both the accused for the considerations which have no substantial bearing on the fate of the case. Learned counsel submitted that the motive set up by the prosecution, was successfully proved but even if motive would have not proved no damage would be caused to the prosecution case on merit. It is also not imperative to give each detail in the F.I.R. and thus, the testimony of the eye-witnesses could not be thrown away for such reasons.

4. We having heard the learned counsel for the petitioner and perused the record with his assistance, have not been able to find out any legal or factual infirmity in the concurrent findings of the two Courts regarding guilt of the petitioner. The ocular account in the present case, was furnished by wife and son of deceased who being inmates of the house were certainly natural witnesses but the essential question for determination would be regarding the time and manner of happening the occurrence and the identification of the assailants at the spot. Mst. Shahnaz Bibi, wife of deceased and first informant, has stated that the occurrence had taken place at about 5-45 a.m. when the deceased after having Sehri, was lying on a cot whereas the post-mortem of the dead body was conducted at about 9 a.m. on the same day and as per medical evidence, stomach was empty, large intestine contained faecal matter and bladder was also full of urine and thus the prosecution version regarding the time of death is contradicted by the medical evidence which would lead to a strong suggestion that the occurrence did take place during the night and possibility that culprit was not identified in the dark, cannot be ruled out. The enmity between the parties is admitted and in these circumstances, it was not safe to rely upon the testimony of interested witnesses without independent corroboration which was not available in the present case. In a case of direct evidence, the rule of corroboration, being rule of abundant caution, may not be necessarily applied in each case but in a case in which the direct evidence is not confidence-inspiring or it is of doubtful character, the Court must follow the rule of corroboration for safe administration of criminal justice. In the present case, the eye-witnesses and evidence of recovery also was of no use to the prosecution and no other corroborative evidence from independent source was available. Consequently, we keeping in view the fact that respondents have earned double presumption of innocence, are not inclined to interfere in the concurrent findings of two Courts regarding acquittal of the respondent on the basis of partisan ocular account.

5. In the light of the circumstances leading to the occurrence, in addition to the reasons for which trial Court as well as Appellate Court have held that prosecution has not been able to prove the charge against the respondent beyond doubt, the conflict of medical evidence with ocular account in respect of time of death, would also create reasonable doubt qua the truthfulness of the prosecution story and in that the acquittal of the accused may not call for interference of this Court. Consequently, this petition being without any substance is dismissed and leave is refused.

N.H.Q./S-22/SC Leave refused.

ajax loader