1969 P Cr (PLP)

AMIRUDDIN AHMAD, J.‑

This is an appeal against the judgment and order of the High Court of West Pakistan, Peshawar Bench, setting aside the acquittal of the appellant and convicting him under section 302/34 of the Pakistan Penal Code and sentencing him to transportation for life. He was tried along with his brother Abdul Hadi, for the murder of his own nephew, Shuauddin by the Sessions Judge, Attock at Campbellpur on charge under section 302/34 of the Pakistan Penal Code and was acquitted, while his brother was convicted and sentenced to death. On appeal against the acquittal by the Provincial Government, the high Court passed the order under appeal. Abdul Hadi has also filed a petition for special leave to appeal from his conviction, and the appeal and the petition are dealt with together. The evidence against both the appellant and the petitioner was the same with this difference that the spear recovered at the instance of the appellant Ibrahim was not found to be stained with blood. The facts of the case, as proved by the prosecution evidence, are that the father of the deceased Shuaudin died about 16 years before the occurrence leaving him an orphan of 8 years of age. His widowed mother Zubeda, the sister of the appellant and the petitioner, invited Abdul Hadi to come and live with her and her son to look after him and manage the lands and live stock left by the husband of Zubeda. About 15 months before the occurrence Shuaudin having come of age took away the management from the hands of Abdul Hadi and himself began to look after the properties and asked Abdul Hadi to vacate the kothah which he was given for his residence. Abdul Hadi resented the taking away of the management from his hands and continued to occupy the kothah, in spite of the demand to vacate it by Shauaudin. Some tine later as there was an apprehension of the breach of the pace, proceedings under section 107 of the Criminal Procedure Code were taken against both the appellant and his brother, the petitioner, and they were bound over to keep the peace for one year. About 7 months later on the night between the 1st and tad August 1957 between 9 and 10 p.m., while the deceased was sleeping in a cot in toe enclosed courtyard of his house side by side with his wife Mst. Nur Bhari and at a little distance from his mother Mst. Zubeda who was sleeping just outside the opening of the courtyard, where??????????? some cattle were also tied, the two women shortly after they had fallen????????? asleep were awakened by the sound of hoofs of cattle, which appeared to have been disturbed by the arrival of an intruder near them. They saw Abdul Hadi coming with a hatchet accompanied by his brother, Ibrahim, the appellant, who had a spear in his hand, through the gap into the courtyard and making for the bed of Shuaudin, deceased, Abdul Hadi gave a hatchet blow on the side of the face of the deceased, who tried to get up, but . . . . . rolled down and fell on the ground between his bed and that of his wife. When he was on the ground Ibrahim gave a spear blow into his abdomen. Abdul Hadi aimed another blow on the deceased but after a slight struggle Mst. Nur Mari, the wife of the deceased, succeeded in taking away the hatchet from his hand. The two women then raised a hue and cry, upon which the appellant and the petitioner ran away towards the south. The noise attracted two persons, Ghulam ;Shah and Ahmad, who came to the place of occurrence and told the two women that they met the two accused on the way when they were coming to their house after hearing their cries. Their evidence was that they and the accused crossed the pucca road in opposite directions almost at the same time when they were about 80 karams from the place of occurrence and that Ibrahim had a spear and Abdul Hadi had nothing in his hand at the time. In the deposition they said that they recognized them in the light of the moon from a distance of about 10 paces. Ghulam Shah then left for the Police Station which is at a distance of 16 miles from the place of occurrence on foot and lodged, the first information report at about 7‑15 a.m. on the following morning. All the necessary details were given in the first information report including the fact that when he saw Abdul Hadi going away he had no weapon in his hand. The Police Officer proceeded to the spot without delay and reached there at about 9‑15 a.m. when he seized the blood‑stained hatchet made over to him by Mst. Nur Bhari and other exhibits, and interrogated the appellant Ibrahim, who took him to a place in the field and pointed out a bush from underneath which he took out a spear, which, however, was not blood‑stained. At the trial the learned Sessions Judge, although the, evidence against the appellant and the petitioner was the same, discriminated the case of the appellant Ibrahim from that of his brother, the petitioner, Abdul Hadi, on the. ground that the spear had no blood‑stain on it and that as the night was in all probability quite dark at the time, it was possible that Mst. Nur Bhari made a mistake about the identity of the appellant Ibrahim. He, therefore, held ? "The benefit of doubt at least must be given to Ibrahim accused, though I have no hesitation in believing that Abdul Hadi actually used the hatchet and intentionally killed Shuaudin under the very eye of Mst. Nur Bhari and within the view of Mst. Zubeda though she might have been watching from a greater distance." He, therefore, convicted and sentenced Abdul Hadi to death and acquitted the appellant Ibrahim, as stated above. Abdul Hadi preferred an appeal to the High Court against his conviction and the Provincial Government filed an appeal against the acquittal of Ibrahim. The two appeals and the reference under section 374 of the Criminal Procedure Code with regard to Abdul Hadi were heard together by the High Court. The High Court, on consideration of the evidence, held that Ibrahim, the appellant, was equally guilty along with Abdul Hadi, set aside the acquittal and convicted him under section 302/34 of the Pakistan Penal Code and sentenced him to transportation for life, while confirming the death sentence on Abdul Hadi. The present appeal and the petition have arisen out of the said order of the High Court. The High Court in support of its order, after considering the evidence, found as follows :‑‑‑ "We have absolutely no hesitation in coming to the conclu?sion that this occurrence has been witnessed by the mother and the wife of the deceased and they have at great injury to their natural affection, deposed against their close relative like brothers and maternal uncle in a murder case." It also held that the acquittal of Ibrahim was unjustified, as nothing in the evidence permits of any discrimination in his favour. The High Court it appears disregarded the evidence of the two other witnesses, Ghulam shah and Ahmad Partly on a misreading of their evidence, as it is stated in the judgment with regard to it as follows :‑ "Both of them stated that when they met the two accused, Hadi had a hatchet and Ibrahim had a spear in his hand." Actually in their evidence they never stated that Hadi at the time had a hatchet in his hand, neither did Ghulam Shah say so in the first information report, which he had lodged. They had every where stated that Abdul Hadi had nothing in his hand when they saw him going away near the place of occurrence. It is true that these witnesses had enmity with the accused persons, but that alone did not justify the rejection of their evidence, and A the High Court could properly require corroboration of their evidence before accepting it. It was urged in support of this appeal that as the two neigh?bour witnesses were enemies of the accused, they must have put their version to the women and convinced them that the murder must have been committed by these two accused and that the High Court should have considered this aspect of the case. It was next argued that the medical evidence shows that the man must have been murdered four or five hours after he took his last meal and that a pre‑planned murder like this must have been committed naturally at a time when the moon must have set. These arguments are for the most part speculative and not based on evidence or legitimate inferences from evidence, and are intended to show that the murderers could not he identified. According to text books on medical jurisprudence there may be circumstances which may vary the time of digestion of food in particular cases. Even if the murder was committed later, and the estimate of the witnesses of the time of murder is not very accurate, this much appears to be certain that it was done at a time when there was sufficient light to enable the murderers to pick out their victim, and also to enable the two eye‑witnesses to recognise from close quarters their near relatives who committed it. There is no evidence or anything on the record to show that Ghulam Shah and Ahmad made any sugges?tion to the women to implicate the appellant and the petitioner. On the other hand, there is sufficient evidence on the record, on which the High Court has based its judgment, and the High Court has not disregarded any principle of law or of natural justice in the appraisement of the evidence. We see no reason to interfere with the findings of the High Court. The appeal as well as the petition is dismissed. Appeal dismissed.