1985 PLP 203 (SCMR)

M.S.H. QURAISHI, J.-- This appeal by leave of the Court arises out of a case relating to the murder of Hakim Ali deceased on the 13th December, 1971 before Maghrib prayer time in the Haveli of the deceased within the area of village Kotli Rai Abu Bakar, about 13 miles from P'.S. Kasur Sadar. The deceased previously lived in village Jhangar, P.S. Raiwind, where, in 1962, he alongwith some others, had been charged with the murder of his uncle Hukam Din but had been acquitted by the Court of Session, whereafter he and the members of his family shifted to village Kotli Rai Abu Bakar where they obtained land by exchange Lino constructed the Haveli in which they were living. At the time of the occurrence, Hakim Ali deceased, his brother Sardar Ali complainant, his wife Mst. Zubeda, his sister Mst. Sardar Begum, Farmaish son of the complainant, and Sarwar, brother of Mst. Zubeda, were present in the Haveli when the accused party, namely, appellarit Muhammad Ali son of Nawab armed with a rifle, Zahoor Din also with f, rifle, Muhammad Ali, Muhammad Sharif and Mehr Din sons of aforesaid Hukam Din, armed with a spear. a pistol and a D.B. gun, respectively, came and raised a Lalkara that they had come to avenge the murder of Hukam Din. The deceased rushed inside the Kotha where his wife and children were already present and chained thT- door from inside. 1 he accused, thereupon, put grass over the door and set it on fire. Meanwhile, Mehr Din and Muhammad Sharif went up the roof of the Kotha and set it ablaze. Due to suffocation, the children inside the kotha started crying. The deceased then opened the door and his family came out but in the process the deceased received burns from the fire. No sooner did he come out, than he was fired at by Muhammad AR appellant, Zahoor- Din and Muhammad Sharif co-accused, at which he fell down. Mehr Din then fired at him and Muhammad Ali son of Hukam Din gave him Barchhi blows. The accused then ran away. The deceased died at the spot. The village being in the Border Belt and on account of the Indo-Pakistan War, nobody went to the police station in the night. Next morning, Sardar Ali went on foot to the police station, from where, on being informed that the S.H.O.'had come to Atheelpur, he went, again on foot, to Atheelpur where he made his statement at 2 p.m., on the basis of which the formal F.I.R. was recorded at 2.45 p.m. on 14-12-1971. The S.H.O. (Rana Daud Ali Khan) went to the spot, from where he recovered, besides the blood-stained earth, four rifle empties, two .32 bore revolver empties and two .12 bore gun empties. lie searched for the accused but they were not available. A proclamation was issued under the orders of the Magistrate. Zahoor Din was arrested on 9-1-1972, Muhammad Ali appellant and Muhammad Sharif on 16-2-1972, Muhammad Ali son of Hukam Din on 24-2-1972, while Mehr Din was arrested on 3-3-1972. A country-made pistol was recovered at the instance of Muhammad Sharif.

2. The post-mortem examination disclosed the presence of three incised wounds, four lacerated gunshot wounds and two lacerated wounds besides a number of burns on the various parts of the body of the deceased. Six pellets were recovered from the dead body, some of which had been described as bullets in relation to the relevant injury but it had later been explained by the Medical Officer that by bullets he actually meant pellets.

3. The prosecution case was based on (1) ocular testimony of Sardar Ali (P.W.6), Mst. Sardar Begum (P.W.8) and Mst. Zubeda Begum (P.W.11), the brother, sister and widow, respectively of the deceased; (2) motive; (3) medical evidence; and (4) recoveries. The appellant who claimed to be innocent denied that he nourished any grudge against the deceased for the murder of Hukam Din as according to him the deceased, though prosecuted had in fact not committed that murder. He also denied that he had absconded and asserted that he had remained in the village throughout. The co-accused also denied the charges.

4. The trial Court did not rely on the recoveries. But strangely, it acquitted Mehr Din by giving him the benefit of doubt for the reason that he had allegedly fired when the deceased had fallen down but none of the firearm injuries could have been caused while he had fallen down. The trial Court similarly acquitted Muhammad Ali son of Hukam Din for the reason that while only one spear blow had been attributed .to him in the F.I.R. the presence of "all the sharp-weapon injuries on the person of the deceased have not been explained by the prosecution". Zahoor Din was also given the benefit of doubt by accepting plea of alibi. The trial Court, however, convicted the appellant and Muhammad Sharif by accepting the ocular account as corroborated by the story of motive, medical evidence and their abscondence. Both of them were accordingly convicted and sentenced under section 302, P.P.C. to death, under section 452, P.P.C: to R. I. for seven years and under section 435, P.P.C. to. R.I. for seven years each. Strange enough, the trial Court without assigning any specific reason also convicted the two under section 148, P.P.C. and sentenced them to R.I. for one year each. They were further burdened with a fine of Rs.2,000 each, in default of which they were to undergo R.I. for one year more. The amount of fine, if realized, was made payable to the heirs of the deceased as compensation.

5. On appeal by the two convicts, the High Court reduced their sentence under section 302/34, P.P.C. to imprisonment for life while maintaining their convictions and the sentences under sections 452 and 435 read with section 34, P.P.C. but set aside their conviction and the sentence under section 148, P.P.C. as being "uncalled for". The view taken by the High Court was that the said convicts had not caused the incised injuries two of which had been fatal and that it could not be definitely inferred as to which of them had caused the fatal firearm injury on the chest of the deceased.

6. Only the appellant moved this Court for leave to appeal which was granted to consider various aspects of the evidence in the case for example (1) the discrepancy found between the medical and the ocular evidence in regard to the number of incised injuries and the absence of bullet injuries; (2) the motive, if true, did not explain why the accused waited so long; (3) the ocular witnesses being inimical, their testimony required corroboration which was not available; (4) the fact while the deceased received burns, his wife and children did not, though all of them had been in the Kotha; and (5) the delay in lodging the F.I.R.

7. The arguments advanced before us on behalf of the appellant were in line with the aforesaid points on which leave had been granted. It was submitted that the mainstay of the prosecution is the ocular evidence but the presence of the ocular witnesses is itself not free from doubt for many a reason. In the first place is the discrepancy in the medical evidence inasmuch as none of the injuries found on the person of the deceased was, according to the Medical Officer, caused by a rifle with which the appellant is said to have been armed, although according to the ocular evidence he had fired at the deceased from his rifle. The F.I.R. spoke of only one spear blow caused by one of the co-accused though as many as three incised wounds were found on the head, the neck and the right thumb and thus the subsequent statements made by the witnesses were a deliberate improvement to cover up the presence of these injuries. The delay in lodging the report, according to learned counsel, is not satisfactorily explained and in this connection he referred to the statement of the recovery witness Hakim Ali son of Umar Din (P.W.14) who said "I was called on the spot in the morning following the night of occurrence. The sun had arisen a little when I was called by the police on the spot". Even the motive, according to him, is not acceptable because the deceased had lived in the former village Jhangar for about ten years after the murder of Hukam Din and before migration to Kotli Rai Abu Bakar and as such the accused party had all the opportunity to wreak vengeance while the deceased was still in their village. In this connection he further urged that the appellant cannot be attributed the motive as he was not closely related to Hukam Din as the co-accused were. Also, if the murder of Hukam Din could be said to have generated enmity between the parties, the evidence of the ocular witnesses ought not to be relied upon unless independently corroborated but no such corroboration is available. So far as the appellant is concerned, nothing incriminating having been recovered from him. The presence of Mst. Sardar Begum, sister of the deceased, who was married and resided in a different village, was not free from doubt, particularly when she had given a discrepant statement as to her arrival. She had stated in her evidence that she had arrived at the Haveli "one or two days before" the occurrence, whereas she had, before the police, stated under section 161, Cr.P.C. that she had come in the morning of the day of the occurrence. The presence of Mst. Zubeda is also to be doubted for had she been inside the Kotha she must have received burns as the deceased had, but strangely she had come out unscathed. On the basis of these submissions learned counsel wants us to believe that the eye-witnesses had not been present, that the occurrence had taken place some time in the night and had not been witnessed by any of the ocular witnesses and that time had been taken to fabricate the case against the appellant and his co-accused on account of enmity.

8. The evidence on record leaves no manner of doubt that then occurrence had taken place in the Kotha of the deceased and as such the presence of at least Mst. Zubeda, wife of the deceased, is not open to doubt. She could identify the culprits who were known persons. She had come out of the Kotha when the injuries were inflicted on the deceased and thus could see the assailants from a close distance. It is true that she had received no burns but she had explained that she had wrapped clothes around her and her children. The nature of injuries of the deceased as also the recovery of the empties shows that more than one weapon had been used which means that the assailants were more than one. We, therefore, see no reason to disbelieve or doubt the evidence of Mst. Zubeda. The motive, if any, on account of the murder of Hukam Din was on the part of the accused and as such the deceased or his family cannot appropriately be said to be inimically disposed towards the accused. Even otherwise, it has time and again been observed by this Court that there is no inflexible rule that the statement of and interested witness can never be accepted unless corroborated. See Nazir v. State P L D 1962 S C 269, Sohni v. Bahaduri P L D 1965 S C 11.1, Nazir Hussain v. Muhammad Shafi P L D 1965 S C 188 and Abdur Rashid v. Umid Ali P L D 1975 S C

227. In any case corroboration is available to her testimony from the medical evidence and the evidence of motive and abscondence. It has been observed by this Court in the afore cited case of Nazir that-- "For corroboration it is not necessary that there should be the word of an independent witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing." Even if no particular injury found on the person of the deceased, be attributable to the appellant, at least his participation as one of the culprits is not open to doubt and as such he is vicariously liable for the murder. On this view of the matter, the conviction of the appellant is fully merited and no interference is called for in that regard. As for the sentence, the occurrence having taken place in 1971, the imposition under section 302/34, P.P.C. of imprisonment for life, which was later introduced by the Law Reforms Ordinance, 1972, was note legal. Learned counsel for the State conceded that the appellant was liable to be punished with transportation for life which was the punishment then under the law.

9. We, accordingly, while maintaining the appellant's convictions alter his sentence under section 302/34, P.P.C. to one for transportation for life. The sentences under the other offences as well as the fine imposed are maintained. With this modification in the sentence, the appeal is dismissed. M . Z . M . Appeal dismissed