1997 P Cr (PLP)

(1) An incised wound 2.5 c.m. x 0.5 c.m. x deep 6 c.m. from the left nipple and 5 c.m. from the sternum, in the 5th inter‑costal space on the left side anterior on the chest. (2) A contusion 3 c.m. x 2 c.m. on the chin left side. The corresponding cut to injury No. l was present in the clothes. In his opinion death was caused due to shock and haemorrhage as a result of injury No. l which was sufficient to cause death in ordinary course of nature. This injury was caused by sharp‑edged weapon whereas injury No.2 was caused by a blunt weapon.

8. The prosecution in order to substantiate the allegations produced 10 witnesses in all. P.W.2 Ghulam Rasool escorted the dead body of Muhammad Yousuf to the mortuary. Muhammad Ramzan Patwari Halqa prepared the site plan Exhs. P.E., P.E./1, P.E./2 at the instance of the police. Muhammad Younus P.W.6 and Muhammad Yaqub P.W.8 furnished the ocular version of the occurrence. They also attested the recovery memo. of incriminating knife P.6 and blood‑stained earth.

9. The appellant when examined professed innocence and stated that he was involved due to enmity with the eye‑witnesses. He did not opt to make a statement. However, he produced Muhammad Yaqub as D.W.1.

10. Learned counsel for the appellant submitted that the eye‑witnesses were not only closely related to the deceased, they were also inimical to the appellant. Further submitted that Muhammad Amin son of Akbar Ali and Nazir Ahmad who were independent witnesses were not produced with the result that there was uncorroborated testimony of interested witnesses in the field. It was also argued that the prosecution failed to prove motive and recovery of incriminating knife P.6. It was contended that the deceased was involved in many criminal cases. He had many foes and the possibility of his being killed by some one else could not be ruled out. It was urged that the presence of the eye‑witnesses at the relevant time was not believable as there was no marriage function on that day. It was also urged that on 10‑1‑1990 at 8‑00 p. m. the night being dark it was not possible for the witnesses to identify the appellant. It was lastly argued that when the learned trial Court found Muhammad Amin son of Akbar Ali innocent, it was not lawful to convict the appellant on the same evidence.

11. Learned Assistant Advocate‑General repelled the arguments of the learned counsel for the appellant and supported the judgment of the trial Court.

12. We have scrutinised the evidence available on the record and heard the learned counsel at length.

13. The eye‑witnesses have successfully explained their presence at the relevant time at the place of occurrence. It was not uncommon that when some, wedding was in offing, music was played and the people in order to enliven I themselves did attend such functions heartily. In Riasat Ali v. The State PLD 1991 SC 397 their Lordships observed as follows:‑‑ "It would suffice to say that even if a chance witness, his explanation regarding what he wanted to do at Railway Office being acceptable the so‑called stigma of being a chance witness loses significance. The argument of the learned counsel that the Railway Office was closed, therefore, the witness should have been declared as having perjured himself is also without much force. The witness had gone to the Railway Station to get a seat reserved for Karachi. There is nothing to show that this was impossible to achieve." They have corroborated each other on all material points. Their evidence is further corroborated by the medical evidence and recovery of incriminating knife P.6. They were cross‑examined at length but the defence could not elicit anything in its favour. Their evidence could not be brushed aside merely for the reason that they were closely related to the deceased especially when they had no personal animus against the appellant. In Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227, it was observed that:‑‑ "The next important point which really forms the crux of the matter is the question of the credibility of the three eye‑witnesses, namely, Abdur Rashid (P.W.8) Aurangzeb (P.W.9) and Muhammad Nazir (P. W.10). P. Ws. 8 and 10 were the brothers of Babu Faqir Muhammad while P.W.9 was the Kamdar of Doctor Tahir Hussain Siddiqi and as such they certainly had close interest in the deceased. In view of the established rivalry between the parties and clash of interest over land, the witnesses were not wholly disinterested. It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not au inflexible rule to be rigidly and unexceptionally applied."

13. There is nothing on the record that the witnesses were involved in criminal cases. They were also not privy to the criminal activities of the deceased. It is in evidence that P.W.8, who is the real brother of the deceased, stood surety only once for him in a certain case. Viewed in this backdrop, it will be absolutely difficult to presume that they would substitute the present appellant for the real culprit.

14. Muhammad Amin, who was named in the F.I.R., was declared innocent by the police and was not sent up by it to face trial. He had not caused any injury to the deceased. It was no rule of universal application that when a certain accused was found innocent by the Court, the other accused would ipso facto stand acquitted. The Court has to sift the grain from the chaff.

15. We are of the opinion that the learned trial Court rightly observed that on 10‑1-1990 at 8‑00 p.m. it was the 13th of lunar month and obviously there was sufficient light. It was also deposed by the witnesses that the electric light was available as the marriage of Muhammad Anwar son of Muhammad Siddique was going to take place on the following day. Even otherwise the eye‑witnesses were at a distance of about one Karam and since they were known to each other, therefore, there was no question of mistaken identity.

16. The recovery of knife P.6 cannot be discarded simply for the reason that its recovery memo. was attested by the eye‑witnesses. It is pertinent to note here that the same was attested by Aftabullah Sub‑Inspector P.W.9 as well, against whom no enmity was suggested.

17. D.W.1 Muhammad Yaqub did not vouch for the innocence of the appellant. His deposition was that the eye‑witnesses and the deceased were not invited by him to relish the music. He, however, admitted that the appellant belonged to his brotherhood and conceded that music was playing in his house and further stated that the people did come to enjoy it even uninvited.

18. In these circumstances, we hold that the prosecution has been able to prove the case against the appellant beyond the reasonable doubt.

19. Now comes the question of quantum of sentence. Appellant Muhammad Akbar and Muhammad Amin son of Akbar Ali had been transmitting the secret information about criminal activities of the deceased for the last many years. Therefore, it will be difficult to hold that for that matter, the deceased took strong exception and enraged the appellant to the extent that he murdered the deceased. There is no evidence with regard to the immediate cause and the explanation for that could be two‑fold. First, either the prosecution did not know what led to the fight, or the prosecution was not prepared to disclose the true facts about this aspect of the case. In either way, its benefit must go to the appellant. It also appears that the appellant inflicted a single knife blow to the deceased and did not repeat his overt act.

20. Pursuant to the above discussion, the appeal is dismissed. However, we decline to confirm the death sentence of the appellant; the same is commuted to life imprisonment but we maintain the sentence of fine of Rs.5,000, in default whereof the appellant shall undergo R.I. for one year further. The appellant shall also pay the sum of Rs.10,000 to the legal heirs of the deceased Muhammad Yousaf or in default shall undergo six months' simple imprisonment, as ordered by the trial Court. The appellant shall also be given the benefit of section 382‑B, Cr.P.C. 21 The death sentence is not confirmed, N.H.Q./M‑2072/L Sentence reduced