1999 PLP 914 (MLD)

Mrs. Siddiqua Altaf for A.-G. for the State. Ch. Nusrat Javed Bajwa for the Complainant. Date of hearing: 17th March, 1998. The appellants namely Waryam and Sultan were convicted under section 302-13/34, P.P.C. and sentenced to suffer imprisonment for life and a fine of Rs.15,000 each or in default to further undergo R.I. for one year each vide judgment dated 18-12-1994 passed by Ch. Muhammad Saeed, learned Sessions Judge, Okara.

2. The brief facts are that the appellants alongwith their father Muhammad Din (now dead) were sent up to face their trial under section 302/34, P.P.C. for the murder of Imam Din. The complaint (Exh.PA) was lodged by Mst. Bilqees Bibi, widow of the deceased in which she stated that on 26-9-1993 at about evening time, she alongwith Abdullah P.W. were present in their field alongwith the deceased Imam Din. In the meantime, Waryam appellant armed with 'Kassi', Sultan appellant armed with hatchet and Muhammad Din empty handed arrived there. Out of them, Waryam appellant/convict asked the deceased as to way he had slashed the 'Watt' thereby making it narrow. He also shouted that he would be taught a lesson for cutting the 'Watt'. This led to the exchange of abuses between the two sides, whereupon, Muhammad Din (acquitted accused) asked the appellants/convicts to catch hold and finish the deceased. Waryam gave ' Kassi' blows hitting on the right cheek and chin of the deceased. It was followed by Sultan appellant/convict who wielded a blow with the hatchet on the head of the deceased whereupon, the latter fell down. Waryam gave another blow with his ' Kassi' hitting the right side of the forehead of the deceased. Sultan appellant/convict repeated hatchet blow injurying the back side of the ear of the deceased. Waryam. gave another blow hitting the right upper arm and knees of the deceased. Then another blow was given by Sultan thereby causing injury to the left arm-pit of the deceased. During the transaction, Muhammad Din (acquitted accused) exhorted the appellants/coftvicts that the deceased should not be spared. The alarm raised by Mst. Bilqees Bibi and Abdullah P.Ws. attracted a number of villagers to the spot, whereupon, all the three accused took to their heals and escaped alongwith their weapons. The deceased succumbed to the injuries suffered during the occurrence. The trial ended into the conviction of the appellants as aforementioned which has been challenged in this appeal.

3. Revision Petition No.210 of 1995 was filed by the complainant, whereby, it was prayed that the sentence of imprisonment for life awarded to the appellants be enhanced to sentence of death. The revision petition is also being disposed of alongwith this appeal.

4. It was contended by the learned counsel for the appellants that the deceased was the real brother of the appellants and a son of the acquitted accused Muhammad Din (since dead). As such, it was contended that the F.I.R. on its face appears to be concocted because no father would exhort his sons to finish his other real son; that the complainant and the other eye-witness namely Abdullah were only chance witnesses and were not present at the time of occurrence to see the murder of the deceased which was allegedly committed during the darkness of night by some unknown assailants; that both the eye witnesses were allegedly inimical to the appellants on account of some sort of dispute regarding the ancestral land; that since the eye-witnesses were not only interested but inimical, therefore, there being no corroborative evidence, the case of the prosecution remained highly doubtful and unproved; that the recovery witnesses were disbelieved and as such, the recovery of blood-stained hatchet and ' Kassi' from the appellants would not link them with the occurrence; that the motive was also not proved which made the prosecution story highly doubtful and as such, the conviction of the appellants was not sustainable, particularly when the eye-witnesses had made the improvements to bring the medical evidence in accordance with their statements recorded during the trial. In this respect, it was submitted that the witnesses had added during their statements that the blows from hatchet and 'Kassi' by Sultan and Waryam respectively were given from their wrong sides and as such, a conscious effort was made to cover up the lacuna in their statements made before the police in respect of the seats of injuries and their nature as determined by the medical evidence. It was, therefore, contended that since the medical evidence had contradicted the ocular account of occurrence and the eye-witnesses were not corroborated by any other evidence, therefore, they being inimical, interested and chance witnesses should have not been believed to record the conviction against the appellants/convicts. Reliance was placed on Jiand v. The State 1991 SCMR 1268, Muhammad Usman and 2 others v. The State 1992 SCMR 489 (Supreme Court of Pakistan) and Zafar Hayat v. The State 1995 SCMR 896 (Supreme Court of Pakistan).

5. Learned counsel for the State, assisted by learned counsel for the complainant contended that the prosecution has successfully proved its case against both the appellants. In this regard, it was contended that the F.I.R. was lodged promptly as the occurrence had taken place at about evening time and the F.I.R. was lodged at 11-40 p.m. during the same night although the distance between the place of occurrence and the Police Station Cantt. Okara was 22 Kms. Keeping in view the distance and the nature of the area, the F.I.R. was lodged without any delay which showed that there was no chance of concoction for the complainant side to twist the actual facts. Even otherwise, the deceased was the real brother of the appellants and as such, there was no occasion that they will be substituted for some other offenders by the widow of the deceased. It was further contended that though there was some sort of dispute regarding the ancestral property between the brothers but that was only a family affair. As such no one would believe that the appellants/convicts would be falsely implicated for the murder of their brother if they were not the actual killers. It might be an unfortunate occurrence but it was alleged that the same was true that the appellants/convicts were the killers of their real brother. Learned counsel for the State contended that there was no contradiction between the medical evidence or the statements of the P.Ws. because they had stated what they had seen during the occurrence. In this regard, it was alleged that the F.I.R. was neither an encyclopaedia nor an exhaustive document to carry the minutes details of the attack. In the F.I.R., the witnesses had stated that the appellant Sultan had caused injuries with hatchet, whereas, his co-appellant Waryam had wielded ' Kassi' to give injuries to the deceased. The mere fact that the witnesses missed to state in the F.I.R. as to what side of weapons of offence was used and that they had stated so during the statements before the Court would not amount to such an improvement so as to adversely effect their testimony which otherwise looked to be forceful and trustworthy; that there was no reason with the widow of the deceased or Abdullah P.W., to falsely implicate the appellants for the murder of their real brother; that though the motive and the recovery of weapons of offence were not proved but there was no need of corroboration because the eye-witnesses were not only natural but truthful keeping in view the circumstances of the case; that the eye-witnesses had no motive to implicate the appellants falsely in this case or to substitute them for any other offender. The natural urge on the part of the widow Mst. Bilqees Bibi would be to bring the real culprits to book instead of roping in some substituted persons was, therefore, contended that if the eye-witnesses were otherwise natural and trust-worthy, there was no need for their corroboration; that if any corroboration was required, the prompt lodging of the F.I.R. would provide the same because was unlikely that in a short span of time there would have been any padding or cooking up of a false story by a woman like Mst. Bilqees Bibi who was admittedly the widow of the deceased. The eye-witnesses being straightforward and truthful, infact there was no need of corroboration. Reliance was placed on Abdul Ghafoor and another v. The State 1994 PCr.LJ 2182 (Lahore.)

6. I have considered the foregoing submissions made at the Bar from both the sides. It is to be seen if the prosecution has been successful to prove its case against the appellants/convicts. In this regard, the main reliance of the prosecution is on the eye-witnesses namely Mst. Bilqees Bibi (P.W.6), a widow of the deceased and Abdullah (P. W.7), a common relative of the parties. Learned counsel for the appellants assailed the testimony of these witnesses on the ground that they were chance witnesses, were interested and inimical to the accused persons. In this respect, it was alleged that the presence of Mst. Bilqees Bibi at the evening time at the place of occurrence looked to be nuusual because she was mother of five children and normally she should be with her children at home at such a time of the day; that she nursed grudge against the appellants under the impression that her husband was not given due share from the inheritance of his ancestral property; that she involved the accused/ appellants merely on suspicion although the murder was committed during the darkness of night by some unknown persons. The testimony of Abdullah (P.W.7) was asssailed on the ground that although he was related to both the sides but his wife Mst. Riaz Bibi daughter of Muhammad Din (dead accused) and sister of the appellants had died and he wanted to have the hand of daughter of Waryam accused with the help of Imam Din deceased and Mst. Bilqees Bibi P.W., but on refusal all of them got inimical to the appellants/convicts; that Abdullah was a chance witness because he never resided at the place of occurrence nor his presence at the spot looked to be creditable because he lived at a distance of about 2 to 5 squares of land from the spot of occurrence; that the witness had told lie although he had not seen the occurrence nor was present at the spot.

7. I have given my considered opinion to the objections raised against the evidence of the eye-witnesses named above. Mst. Bilqees Bibi is admittedly a widow of the deceased and her presence with her husband was very natural. She must have gone there to see her husband who was working there since morning. Unfortunately at evening time, the assault took place as described by her, whereby, she specifically named the appellants/convicts and attributed them the hatchet and 'kassi' blows mentioned in the F.I.R. and detailed in her statement. The mere fact that the F.I.R. was silent regarding the use of 'Kassi' or hatchet either from the sharp side or from the blunt side would make no difference as the same was explained during the evidence at the trial. This cannot be considered as an improvement nor it would damage the evidentiary value of the statements of the eye-witnesses at the trial. Admittedly, it was evening time and the attack was made on the deceased suddenly by the appellants/convicts with their respective weapons thereby causing blows on the different parts. It could not be possible to tell with exactitude regarding the side of the ' Kassi' or the hatchet used for causing injuries during the transaction. The mere fact that the eye-witnesses explained that position during the trial would not constitute deliberate improvement nor it would effect the merit of their statements, particularly when the weapon of offence used by each of the appellants has been stated to be the same which were mentioned in the F.I.R. A little bit variation may be possible due to the observation mad: by a naked eye, particularly when the occurrence had taken place near about the sun-set. The medical evidence cannot be stated to be contradictory because the use of hatchet and ' Kassi' could be inferred from the injuries found on the body of the victim. The witnesses also stated that those injuries were caused by ' Kassi' and hatchet respectively by the appellants/convicts. In such a situation, it cannot be said that there was any material discrepancy between the medical evidence and the ocular account of occurrence. Even otherwise a minor variation in the nature of injury is not ` necessarily to lead to a conclusion that the eye-witnesses had wrongly deposed. On the contrary, weight should be given to the evidence of the eye-witnesses as compared to the expert evidence because the latter only gives an opinion, whereas, the eye-witnesses renders the account of occurrence what he or she had actually seen. It is well said that 'seeing is believing'. Hence the eye-witnesses have to be given preference regarding the ocular account of occurrence given by them if they are otherwise trustworthy and creditable. In the instant case, there is nothing on record to show that either Mst. Bilqees Bibi or Abdullah P.Ws., had any such animus against the appellants/convicts so as to involve them in the case falsely. It is particularly so about Abdullah P.W. because he is related to both the sides and would not like to depose falsely against the appellants/convicts if they were not the actual culprits. Even otherwise, their evidence is supported by the prompt lodging of the F.I.R. because the occurrence had taken place at about evening time, whereas, the case was registered with the police at 11.40 p.m. on the same night although being a rural side, the distance of place of occurrence from the police station being 22 Kms. would not leave any scope for the padding or concoction of the F.I.R. by the complainant side. The presence of Abdullah P.W. cannot be rendered as per chance because he also owns land near to the place of occurrence at the distance of between 2 to 5 squares although the exact distance could not be pin pointed but according to the witnesses, the distance was about 2 squares of land. This distance is not too much in the rural side and would be considered close enough to attract the witness to the tube-well of Allah Ditta (given-up P.W.) for the purpose of smoking of 'Huqqa'. This conduct of the witness is also not unusual because in the village side, people come to share smoking of ' Huqqa' if it is available in the nearby place. The presence of Abdullah P.W., therefore, cannot be considered exceptional or unusual but would be rather natural. As such, both the eye-witnesses had no special reason C to implicate both the appellants/convicts falsely in this case. On the contrary, the natural urge on the part of Mst. Bilqees Bibi, widow of the deceased being an Eastern lady would be to name the actual culprits instead of substituting some innocent persons for the murder of her husband. As such, the evidence given by both the eye-wintesses is not only trust-worthy but also appears to be convincing and highly creditable being truthful and straightforward. The learned trial Court has, therefore, correctly relied upon the ocular account of occurrence although the motive and recovery were discarded. The mere fact that complainant was unable to state in the F.I.R. whether or not the weapons of offence were used from the sharp or wrong side would make no difference keeping in view the evening time and also because the F.I.R. is not an exhaustive document so as to contain the minutest details of the assault by giving the photographic version of the infliction of injuries. It should be kept in mind that the occurrence is to be seen by a naked eye and every witness has a different power of observation, therefore, non-mentioning of minor details as pointed out above would not render their testimony defective provided the same is straightforward and trustworthy otherwise. As already held above, both the eye-witnesses appeared to be truthful and straight forward, therefore, the variation in respect of the use of weapons from its sharp or wrong side would not make any difference nor would it create any genuine doubt regarding the culpability of the offenders. Since the eye-witnesses have been found to be truthful witnesses, therefore, they would not require any material corroboration from the circumstantial evidence and if any is needed, the lodging of the prompt F.I.R. can be used as a corroborative piece of evidence.

8. The defence taken up by the appellants/convicts is of no avail to them because the eye-witnesses have no animus against them to implicate them falsely in this case. Their alternative plea also falls to the ground that somebody else had killed the deceased during the darkness of night and being a blind murder, they had been involved in this case falsely by the P. Ws. There is nothing on the record to point out any exercise or venture on the part of the P. Ws. so as to implicate the appellants/convicts falsely in this case. Hence, in the absence of any defence evidence, the plea raised by the appellants/convicts would be devoid of merit. The prosecution having proved its case beyond any reasonable doubt, the appellants/convicts were rightly convicted by the I learned trial Court.

9. The question of sentence is not difficult in this case. Both the appellants/convicts had attacked their real brother after some altercation and on exchange of abuses at a spur of the moment and probably without any pre meditation on seeing the slashing of the 'Watt'. Therefore, the sentence awarded by the learned trial Court does not call for any interference. It will not be a case of capital sentence even on that ground apart from the ground given by the learned trial Court. Resultantly, the appeal is dismissed. The conviction and sentence for imprisonment for life under section 302-B/34, P.P.C. is maintained. Since there is no provision of sentence of fine under section 302-B, P.P.C., therefore, the aforesaid sentence is set aside and is converted into amount of compensation of Rs.25,000 each to be paid by the appellants/convicts to the heirs of the deceased under section 544-A, Cr.P.C. failing which they shall suffer further S.I. for three months each. The benefit of section 382-B, Cr.P.C. is maintained.

10. This will also dispose of the connected revision petition which stands dismissed. N.H.Q./W-30/L Appeal dismissed.