1985 PLP 1861 (SCMR)

4. According to the version of the incident given by Muhammad Yar in the F.I.R. he was sleeping on the roof of his Verandah while his wife was sleeping with his mother, Mat. Bano and his uncle Rahman in the courtyard. He woke up at about mid‑night on the barking of the dogs, and he noticed four persons present in the courtyard when, he identified as Yara, Muhammad, Umra and Bali. Yar and Umra were armed with Tokas while Muhammad and Bali had Lathis. Yar and Umra gave hatchet blows on the neck of his wife, and on the alarm raised, Ahmad P.W. who was sleeping in front of his house nearby, rushed to the spot, but the assailants however ran away. According to him did not get up out of fear that he would also be murdered.

5. At the trial, the prosecution case was sought to be supported by the ocular testimony of Muhammad Yar as corroborated by P.W. Ahmad and the circumstantial evidence as to the recovery of the blood‑stained weapon of offence at appellant's instance, which was proved to be stained with human blood.

6. The defence of all the accused was mere denial of the prosecution case and false implication.

7. The Additional Sessions Judge, Sargodha who tried the case believed Muhammad Yar and Ahmad P.W. as truthful witnesses but accepted the plea advanced on behalf of the accused that in view of the well‑settled principles that the evidence of interested and hostile witnesses is not to be relied upon without some independent corroboration, he held that since there was no corroboration against three co‑accused Muhammad, Umra and Bali, they are entitled to the benefit of doubt. He accordingly held the appellant alone as guilty of the charge in view of the circumstantial evidence mentioned above which was also believed by him.

8. On reference for the confirmation of the death sentence and appeal by the convict, Lahore High Court on re‑appraisal of the case upheld the conclusions reached by the trial Judge and dismissed the appeal.

9. Special leave to appeal was granted to the appellant in order to consider if the prosecution evidence of the alleged eye‑witnesse5 Muhammad Yar was reliable and trustworthy.

10. Mr. Ejaz Hussain Batalvi learned counsel for the appellant with reference to the statement of Muhammad Yar at the trial submitted that on his own showing he admitted that he did not get up from the cot nor he sat on it yet he claimed to have been able to identify the four culprits during the night time while lying on the cot and raising his head. Learned counsel submitted that these and the other statements made by Mr. Muhammad Yar show that he is not a trustworthy witness.

11. As to the claim of P.W. Ahmad as the eye‑witness learned counsel submitted that if he were sleeping in the courtyard of his house as claimed by him, it could not have been possible for him to witness the crime and, in any case, on his own admission that he resided at Pindi Rawan at the time of occurrence he is a false witness having been set up by the prosecution. According to the learned counsel since in spite of independent persons available in that village Investigating Officer, Malik Ghulam Muhammad, had made Muhammad P.W. 5 and Ahmad P.W.7 paternal and maternal uncles of the deceased as the witnesses of the recovery of the incriminating articles, the circumstantial evidence as to the recovery of the incriminating weapon of offence is also not worthy of reliance. Learned counsel also criticised this part of the prosecution case on certain other points.

12. All the arguments advanced by the learned counsel relate to appreciation of evidence. In regard to P.W. Muhammad Yar, learned trial Judge has observed as follows:‑‑ "It is admitted by Muhammad Yar and Ahmad P.Ws. that they own land at Chah Waraichanwala and that some of their fafhily members lived at Chah Waraichanwala while these people lived at the Dera the place of occurrence. I Would not believe Patwari when he says that all these persons live at Chah Waraichanwala. This patently looks an admission arranged with the Patwari and allows rejection of such admission by formal witnesses. The circumstances also show that Muhammad Yar lived at Dera as will be seen that Mat. Rasulan was murdered there and it is not possible to conceive that a man would leave his wife and little child alone at his Dera which is not even within the Abadi of the village. So I hold that Muhammad Yar, his wife Mst. Rasulan deceased, Ahmad P.W. and Rahman lived at the Dera, the place of occurrence during the days of occurrence. As regards the second objection of learned counsel for the accused that he was not in a position to identify the accused, I do not see much force in it. It was admittedly 14th of lunar month and according to the witness the moon was high in the sky at the time of occurrence. Muhammad Yar P.W. was specifically asked by learned counsel for the accused, whether he could see the place of occurrence from the place where he was lying and he answered in affirmative. It is also argued that if Muhammad Yar was present, the accused should have murdered him and this also shows that he was not present in his house at the time of occurrence. Muhammad Yar admittedly was not sleeping in the courtyard. If at all the accused had tried to climb over the roof of verandah he could have managed to escape. From the circumstances of the case it appears that the accused did not commit the offence with confidence as they dealt only two Toka blows and ran away hurriedly presumably with the fear that they may not be apprehended by villagers because Rahman and Banoo were raising alarm. Both the parties belong to the same village and I do not think that identification could be doubtful in the circumstance in which the occurrence took place. So I hold that Muhammad Yar P.W. was present at his house at the time of occurrence as sleeping on the roof of veranda and saw the occurrence from there."

13. So far as the evidence of recovery of the incriminating articles from the appellants is concerned learned trial Judge believed this evidence for the reasons:‑‑ "Muhammad P.W.5 and Ahmad P.W.7 are witnesses of recovery besides Ghulam Muhammad Sub‑Inspector P.W.8. Learned counsel for the accused wants me to disbelieve these witnesses on the ground that two of them are relatives of Muhammad Yar while the third is police officer. He has also referred me to the statement of Muhammad P.W.5 which he made before Committing Magistrate and with which he has been duly confronted. According to him the accused Yara and two constables and the witnesses went to effect the recovery of Toka P.1 which was taken into possession at the Dera and sealed there. I do not think that this is very material discrepancy. All. the three witnesses are unanimous that the recovery of blood‑stained Toka P. 1 was effected at the instance of Yara accused from a Khola, at Chah Kadaywala and that Toke was lying hidden under Bhoosa lying in that Khola. It is argued that it is unnatural that the accused would keep the blood‑stained Toka for 6‑7 days and would not wash it or throw it away. No doubt the accused could have done so but we see that things happened in a way that it was not possible to do so. It may be that the accused did not get time to wash the Toka or dispose it of. We see that the S.I. reached the spot within 2/3 hours of the occurrence, so it can well be said that the accused ran from the village and did not return till the time of their arrest on 31st August, 1972. Yara accused led to the recovery of Toka immediately after his arrest. I do not see any reason to reject the evidence of these witnesses simply because they are relatives of Muhammad Yar."

14. Learned Judges in the High Court on appeal have appraised this evidence and observed a follows:‑‑ "It is evident that the assailants in this case, whether it was one man or more, had come with no other object except to murder the deceased and possibly Muhammad Yar P.W. if he had also been asleep in the courtyard. From the record it appears that only the accused side could have the motive to murder the deceased or Muhammad Yar P.W. The life of Muhammad Yar P.W. was saved because he was asleep on the roof, but the deceased was picked out by them as their target. In any case in our view the learned trial Judge had taken abundant caution in this case by only convicting and sentencing the appellant and giving benefit of doubt to the three acquitted co‑accused. According to the medical evidence there were two incised injuries on the neck of the deceased. She had no blunt weapon injury. This would indicate that Umra and Muhammad acquitted co‑accused who were stated to have been armed with Lathis by Muhammad Yar P. W. did not cause any injury to the deceased. Even according to the statement of Muhammad Yar P.W. they had not participated in the occurrence. This would leave behind the appellant and Bali acquitted co‑accused who were stated to have been armed with Tokas. According to Muhammad Yar P.W. each of them gave a Toka blow on the neck of the deceased on the same side. But from the nature of the two injuries it appears that although they were the result of two blows, but it was probable that they had been given by an assailant standing on the same position. It can, therefore, be said with reasonable certainty that it was only one assailant who gave the two blows which fell on the neck of the deceased on the same side and at the same location. So far as the appellant is concerned, the testimony of the single eye‑witness in this case is supported by the recovery of Toka P.1 from him, the motive as well as the medical evidence. The argument of the learned counsel that the public witnesses of the recovery of Toka P.1 were closely related to Muhammad Yar P.W. carries no weight because this recovery had also been witnessed by Ghulam Muhammad S.1. P.W. and there is no reason why his testimony respecting this recovery from the appellant should be discarded."

15. We wholeheartedly agree with the views of the Courts below that there can be no doubt as to the presence of Muhammad Yar on the scene of occurrence at the time the crime was committed. The report of the crime was lodged by him without loss of time, and the version of the incident given by him was throughout consistent from the stage of the lodging of the F.I.R. and evidence in Court. He had no grudge whatever with appellant Yar so as to subscribe the role to him for the murder of his wife. The High Court has also believed the circumstantial evidence for proper and valid reasons. We are, therefore, clearly of the view that the guilt of the appellant on the charge framed against him rests on cogent and reliable evidence produced before the prosecution and there is no merit in this appeal. It is accordingly dismissed. M.I. Appeal dismissed.