1985 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑ This Criminal Appeal No.707 of 1981 and the connected Murder Reference No. 49 of 1982 arise from the judgment of learned Additional Sessions Judge, Attock whereby he on 7‑12‑1981 convicted Khakhi Jan (25) and Fazal‑ur‑Rehman (18) appellants under section 302, P.P.C. for causing the death of Iftikhar Ahmad (21) and sentenced them to death and a fine of Rs.5,000 in default thereof three years' R.I. They were also directed to pay Rs.5,000 each as compensation to the legal heirs of the deceased. In default thereof further R.I. for two years.

2. The occurrence took place on 26‑4‑1981 at 7‑45 a.m. near a place known as Baghowarian in the area of Pindwal at a distance of three miles from Police Station Saddar Attock. F.I.R. Exh.P.D. was lodged on the same day at 8‑30 a.m. by Muhammad Razzaq P.W.7 the first cousin of the deceased and was recorded at the Police Station by Nawazish Ali Kiani S.H.O. P.W.11.

3. The motive as alleged by the prosecution was that a day before the occurrence at Adda Suzuki Hamam Road Attock Khaki Jan and Fazal‑ur‑Rehman appellants occupied front seat of a van on which the deceased had already placed his Chaddar. The deceased asked them to vacate the front seat. On their refusal to do so Iftikhar Ahmad deceased forcibly dragged them out of the van followed by exchange of abuses and altercation between the appellants and the deceased. Pervaiz Khan P.W.6 and Ghulam Rasool (not produced) separated them. The appellants declared that they will teach him the lesson for their insult, hence this occurrence.

4. As far the main case, it has been stated that Muhammad Razaq P.W.7 who was clerk in Evacuee Department, Rawalpindi had come to his village Sheen Bagh on leave. On the eventful day, in the morning he alongwith Iftikhar Ahmad deceased (his cousin) went to Pindwal for having quail fight. At about 7‑40 a.m. they alongwith Muhammad Taj P.W.8 and Noor Ilahi P.W.9 while on their way back to houses, reached Baghowarian when Khaki Jan and Fazal‑ur‑Rehman appellants waylaid them, duly armed with Chhuris. They raised Lalkara that they would teach lesson to Iftikhar Ahmad deceased for insult done to them a day earlier. Khaki Jan gave two Chhuri blows on the left flank and on the left hand of Iftikhar. Fazal‑ur‑Rehman inflicted three successive blows with ‑his Chhuri hitting on left side, right side and the middle of the head of Iftikhar Ahmad deceased who fe11 down on the ground. The eye‑witnesses tried to save Iftikhar deceased but were threatened by the appellants with same consequences. Iftikhar Ahmad succumbed to the injuries on the spot. The appellants then left for their houses taking away Chhuris with them. The complainant then left for Police Station to lodge report.

5. On 26‑4‑1981 at 10‑30 a.m. Dr. Rashid Ahmad P.W.1 conducted past‑mortem examination on the dead body of Iftikhar Ahmad deceased and found following injuries:‑ (1) A stab wound 2.5 c.m. x 2 c.m. with a loop of mis entry protruding out on left side of abdomen near the costal margin in the enterior exalry line, directed transversely. (2) An incised wound on left side of front of head 8 c.m. x 1.5 c.m. transversly directed with a partil cut in the bone 10 c.m. above the left ear. (3) An incised wound 2 c.m. x 0.8 c.m. on front of right side of head entero‑post rally directed into the direction of bone. (4) An incised wound 1.5 c.m. x 0.5 c.m. on the vault of skull bone cut. (5) An incised wound on the left palld of the hand near the base of little finger 1.5 c. m . x 0. 5 c. m., miscal deep. On internal examination the Doctor found that the walls against injury No.1 were injured; Peritonium, were injured, abdomen cavity was full of fluid and was blood clotted; Stomach was healthy and empty and contained two to three ounces of fluid; Large intestines were healthy and faecal matter was present and the bladder was full of urine. Bone was cut through and through under injuries Nos. 3 and

4. In his opinion, death was due to severe haemorrhage and shock which resulted in injury No. 1, which was sufficient' to cause death in ordinary course of nature. Injuries Nos.3 and 4 were grievous whereas injuries 2 and 5 were simple. All injuries were caused by sharp‑edged weapon. In cross-examination the Doctor stated that the deceased died at a time when he had not answered the call of nature and had not passed urine in the morning. The Doctor stated that it was possible that Iftikhar Ahmad had died I hour and the 4J hours before the post‑mortem examination.,

6. The appellants were arrested on 27‑4‑1981 i.e. the following day of the occurrence by Nawazish Ali Kiani S.H.O. P.W.11. Khaki Jan led to the recovery of blood‑stained Chhuri P.4 which was hidden in the ground on the bank of a Nalla. It was taken into possession vide memo. Exh.P.F. attested by Muhammad Nawaz P.W.10 and Abdullah Khan (not produced). On the same day Fazal‑ur‑Rehman led to the recovery of blood‑stained Chhuri P.5 which was hidden in sand under the reeds bushes which was taken into possession vide memo. Exh.P.G. attested by the same witnesses. The memoranda were prepared by Nawazish Ali Kiani S.H.O. P.W.11.

7. To prove its case prosecution examined 11 witnesses. Doctor Rashid Ahmad P.W.1 conducted post‑mortem examination. Muhammad Razzaq P.W.7, Muhammad Taj P.W.8 and Noor Ilahi P.W.9 have given the ocular account of the occurrence. They stated that it was within their view that the two appellants duly armed with Chhuris after having waylaid Iftikhar Ahmad had done him to death by inflicting Chhuris blows on his person. Pervaiz Khan P.W.6 narrated the incident of a day earlier when the deceased had dragged the appellants, out of the van which led to the exchange of abuses and fist blows between them. Muhammad Razaq P.W.7 also supported the motive part of prosecution case. Muhammad Nawaz P.W.10 and Nawazish Ali Kiani S.H.O. P.W.11 have proved the recoveries of blood‑stained Chhuris P.4 and P.5 from Khaki Jan and Fazal‑ur‑Rehman appellants, respectively. The Serologist Report Exh,P.L. indicates that Chhuris recovered from the appellants were stained with human blood. The rest of the evidence is of formal nature.

8. When examined under section 342, Cr.P.C. the appellants denied all incriminating circumstances. They raised plea of false implication on account of enmity. In reply to the question as to why the case against him Khaki Jan stated:‑ "There is bad blood between my family and the family of the deceased since long. We are always arrayed on two different side, whenever there is election or there is a murder case which had taken place in our village. Muhammad Razaq P.W. is a close relation of the deceased. Muhammad Tai P.W. is under the obligation of Malik Allah Bakhsh father of the deceased who produced him before the Police in Sessions Case No.108 of 1976. Muhammad Akram son of Muhammad Aslam reported the murder of Muhammad Akram son of Ali Khan and he charged Taj Muhammad P.W. to have fired at Muhammad Akram with .12 bore pistol and he had shown himself to be an eye‑witness in that F.I.R I produce this F.I.R. Exh.D.B. This Muhammad Akram appeared as P.W.12 in the said Sessions trial. His statement is Exh.D.C. A case had been registered against Mst. Shaman mother of Muhammad Taj P.W. in which Muhammad Ali and Abdur Rahim my relations appeared against her as P.Ws. I produce the copy of the statement of Muhammad Ali Exh.D.D. and the extracts from the village Goshwara Exh.D.E. which show that Muhammad Ali and Abdur Rahim appeared as P.W.2 and P.W.4 against Mst. Shaman wife of Shahinchi who is the mother of this Taj Muhammad P.W. Nur Ilahi P.W. is the barber of Allah Bakhsh. He has been produced as a witness in a murder case against Younis etc. in which he himself was a complainant. Nur Ilahi was convicted and sentenced to three months' R.I. in a theft case. He was once arrested by the Police in a case under section 392/353, P.P.C. He is under the influence of Allah Bakhsh and he works as a barber. The witness to the recovery of the crime weapons is that known to the Police. He is a servant of Allah Bakhsh father of the deceased. Pervez P.W. who has been introduced as P.W. of the incident of the previous day is a close relation of the deceased and is falsely supporting the prosecution version." In reply to this question, Fazal‑ur‑Rehman stated:‑ "The deceased was killed in the early hour of the night at a place at some distance from the house of my paternal‑uncle Aurangzeb. There is general rumour that the deceased had come to meet a girl and her relatives killed him to death. I and my co‑accused have been falsely charged by Muhammad Razzaq and other P.Ws. at the instance of the father of the deceased. The witnesses are interested, inimical and partisan witnesses. The same is true of the motive witnesses. The solitary recovery witness is the servant of the father of the deceased. 8‑A. Trial Court has believed motive, ocular evidence and recoveries of crime weapons from appellants. It has rejected the plea of false implication.

9. The learned counsel for the appellants contended that the prosecution has failed to prove its case against the appellants beyond reasonable doubt inasmuch as the motive is far‑fetched; that the three eye‑witnesses are related and inimical; that they have suppressed facts which they were presumed to know; that their evidence is not in conformity with the medical evidence because injuries on the head of deceased could not have been inflicted by Chhuris which are usually used for stabbing; that the recoveries are fake; that the conduct of the appellants burying blood‑stained Chhuris on the bank of Nalla is highly improbable and that from the contents of the stomach and the bladder it appears that the occurrence took place before morning and not at 7‑40 a.m. as stated by the prosecution. In the alternative the learned counsel prayed for lesser penalty. Conversely the learned counsel for the State assisted by the learned counsel for the complainant supported the judgment of the trial Court in its entirety.

10. We have considered the arguments advanced by the learned counsel for the parties with care. Keeping in‑mind that in the case in hand, the appellants have not raised any special plea and as such the entire onus was on the prosecution to prove its case through reliable evidence and that too beyond reasonable doubt and that the weakness in and absence of the defence evidence would not strengthen the prosecution case, we have appreciated arguments addressed by the learned counsel for the parties in the light of evidence direct/indirect available on record. Starting with the foundation of the prosecution case i.e. the F.I.R. we find that the occurrence took place at 7‑45 a.m. The Police Station was at a distance of three miles. F.I.R. was lodged at 8‑30 a.m. There is nothing on record to show that F.I.R. Exh. P.D. was not written at the time and place as stated by the prosecution. The genuineness of this document has in fact not been assailed before us by the learned counsel for the appellants. The great promptitude with which the F.I.R. was lodged may give rise to the conclusion that Muhammad Razaq P.W.7 must have either witnessed the occurrence or otherwise connected with it and that the eye‑witnesses more particularly those who are not related could not have been procured or induced to become false witnesses in such a short time in case they had not witnessed the occurrence. This genuine and prompt F.I.R. Exh. P.D. can be used to corroborate the statement of its maker i.e. Muhammad Razaq P.W.7. The foundation of the prosecution case is thus concrete.

11. Adverting to its main pillar i.e. ocular testimony, we find that Muhammad Taj P.W.8 and Noor Ilahi P.W.9 are not related to the deceased. They had no direct enmity with the appellants. No doubt Muhammad Razzaq P.W.7 is the first cousin of the deceased but it is well recognized that relationship alone, is not sufficient for discarding the testimony of a particular witness. It may be stated here that no specific rule for the appreciation of evidence in criminal cases can be laid down because the facts to the two cases seldom coincide. The general rule of appreciation therefore is that the want of interest or absence of enmity does not stamp the statement of a particular witness with truth and that much depends on the intrinsic value of the statement of a witness. The real tests are (i) whether the statement of a witness is in consonance with probabilities, (ii) whether it fits in with the other evidence and (iii) whether its inspires confidence truth in reasonable mind. In the case in hand, we find that the three eye witnesses have given plausible cause of their presence on the spot at the fateful time. It is a matter of common experience that the people do assemble at particular place for having quail fights, and for that they go in batches and return in batches. The conduct of Muhammad Razaq, Muhammad Taj and Noor Ilahi the eye‑witnesses of accompanying the deceased thus accords with natural probabilities. The witnesses have no direct serious enmity with the appellants to involve them falsely on a capital charge. Except for immaterial discrepancies/contradictions improvements, we do not see any inherent infirmity in their statements. No doubt on one or two points the witnesses have not taken the Court into confidence, for example, Noor Ilahi P.W.9 in cross‑examination stated that:‑ "It is incorrect that I appeared as a P.W. in a murder case against Muhammad Younis etc. I do not know whether Allah Bakhsh father of the deceased lodged report against Younis etc. under section 302, P.P.C." But the copy of his statement marked Exh. D.F., copy of judgment in a murder case Exh. D.G. both tendered as additional evidence under section 428, Cr.P.C. vide separate order of this Court) leads no room for doubt that he did appear as a witness in the murder case against Younis etc. lodged by Allah Bakhsh. To our mind this suppression by itself is not sufficient to discard the entire statement, of the witnesses which are not only in consonance with the probabilities but also fits in with other evidence and the surrounding circumstances of the case. We do not see any material conflict in the ocular and the medical evidence. It would be too much to hold that in no case the assailants would inflict Chhuri blows on the head of his victim. The number of the injuries found on the deceased and the number of the persons named by the eye‑witnesses do commensurate. No foundation for the substitution of the appellants for the real culprits has been laid down. To our mind Muhammad Razzaq P.W.7, Muhammad' Taj P.W.8, Noor Ilahi P.W.9 are the confidence inspiring witnesses and implicit reliance can be placed on their uncorroborated statements. The main pillar of the case is therefore strong enough to face judicial scrutiny and test. The conviction recorded by the trial Court can safely be sustained on the ocular evidence alone and it needs no confirmity evidence. In case the prudence requires corroboration of the ocular account that is as there in the shape of motive proved by dependable witnesses and recoveries supported by reliable P.Ws. Pervez Khan P.W.6 has deposed about the motive. He had no enmity with the appellants. He being cousin of the deceased is not sufficient to reject his statement. His name is very much mentioned in the F.I.R. We do not see any inherent infirmity in his statement. From his statement it is very much proved that the deceased had dragged the appellants out of Suzuki Van a day before the occurrence H and that the appellants had threatened to teach him lesson for their insult. With this background Khaki Jan and Fazal‑ur‑Rehman were expected to join in attack on the deceased. The recoveries of blood stained Chhuris were effected on the following day of the occurrence. The Chhuris were lying hidden which shows that the appellants and none else had the exclusive knowledge of the places from where the same were recovered. Muhammad Nawaz P.W.10 is quite an independent witness having no motive to depose falsely against the appellants. He stands corroborated by Nawazish Ali Kiani S.H.O. P.W.11. They have successfully faced cross‑examination. There is thus ample direct and circumstantial evidence to satisfy our mind that the eye‑witnesses have truly named the appellants as murderer of the deceased. For all these reasons, we do not see any force in the contentions of the learned counsel for the appellants. We feel that the structure of the prosecution being not shaky, it does not tremble down. We are therefore convinced that the learned trial Court has rightly convicted the appellants under Section 302/34, P.P.C. for the murder of Iftikhar Ahmad deceased.

12. This brings us to the question of sentence. Since there is al wide difference between the death and life, the question of sentence on capital charge always demands utmost care on the part of the Courts dealing with the life of a convict. The sentence is to be weighed in golden scales as it were properly balanced to punish the offender in proportion to the character and extent of his guilt, to be deterrent for and for the rest of society without being unnecessarily harsh or needlessly indulgent. Bearing in mind the circumstances surrounding the guilt of the two appellants we find that because of the incident wherein the two appellants were publically insulted by the deceased who dragged them from the front seat of, a van where they were sitting, a day before' the occurrence, the act of the appellants was somewhat provoked by the deceased. They were feeling very much insulted inasmuch that not only at the time of incident but also at the time of the main occurrence the appellants had declared that they would teach the deceased a lesson for their insult. The earlier incident wherein the two appellants were publically insulted by the deceased could provoke any reasonable man and can be termed and treated as a mitigating /extenuating circumstance in favour of the appellants for lesser penalty. The sentences of death awarded to both the appellants are therefore altered to imprisonment for life. The fine awarded by the trial Court, sentence in default thereof and compensation awarded by the trial Court for payment to the legal heirs of the deceased are maintained. Since the trial Court could not have awarded two years' R.I. in default of compensation under section 544‑A, Cr.P.C. therefore the same is reduced to six months' S.I. The death sentences of the appellants are not confirmed. M. Y. H. Appeal partly accepted.