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‑‑ Ss. 302/34 & 307/34‑Murder‑Evidence‑Motive and ocular testi mony of injured witness duly corroborated by statements of other prosecution witnesses coupled with evidence of recovery of incriminat ing articles and supported by medical evidence‑Prosecution case against accused, held, established beyond reasonable doubt. ‑[Motive Evidence‑Corroboration].

b) Penal Code (XLV of 1860)

‑‑ S. 302/34‑Murder‑Evidence‑Mere relationship of witnesses with, deceased‑Cannot discredit testimony of such witnesses unless shown to have motive to falsely implicate accused.‑[Evidence‑Witness].

c) Criminal trial‑

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Evidence‑People usually avoid to offer themselves as witnesses to support prosecution case before Police or in Court for fear of earning enmity of accused persons‑Contention that good number of people from locality having failed to come forward as eye witnesses of occurrence prosecution case became doubtful‑Held, unwarranted, in circumstances of case.‑[Evidence‑Witness].

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d) Criminal Procedure Code (V of 1898)‑

‑‑ S. 288‑Application of provision‑Statements of witnesses transfer red to Sesssions file‑To be taken into account as good evidence against accused‑Such testimony cannot be rejected by trial Court without sound reasons.‑[Evidence].

Section 288, Cr. P. C. only comes into display when the trial Court :after recording the evidence of a P. W. comes to a conclusion that the statement made before it was not true and the evidence given by him at an earlier stage before the C. M. was more near the truth. Once the trial Judge comes to this conclusion, he is required to give his reasons and transfer ‑the same to his own file. In the instant case the witness's statement had been transferred to Sessions file and thus it was incumbent upon the trial Judge to give sound reasons before he changed his mind and wanted to reject the testimony so transferred. In the absence of such reasoning the evidence so transferred under section 288, Cr. P. C. is a good evidence and can be taken into account against the accused for his conviction.

Muhammad Ahmad v. State P L D 1970 S C 72 ref.

e) Criminal trial‑

Evidence‑Statements of witnesses recorded after considerable delay‑Minor discrepancies in testimony of such witnesses‑Held, cannot destroy entire value of their evidence or make prosecution case doubtful.‑[Evidence‑Witness.

f ) Penal Code (XLV of 1860)‑

‑‑ S. 302‑Murder‑Intention‑Held, always gathered from strength of blow and injury caused on person of victim.‑[Intention Criminaltrial].

Sewa Singh v. Emperor A I R 1940 Lah. 490 ref.

Latif Hussain Jaffery for the State.

Raja Said Akbar for Respondents.

Dates of hearing : 19th, 22nd and 23rd December 1975.

ABDUL JABBAR KHAN, J ‑Nur Elahi (34) since dead, Ehsan Elahi (43) sons of Muhammad Sultan, Fazal Hussain (45) and Nur Hussain alias Kala (50) sons of Haji Yar Muhammad, all Kashmiri by caste, were tried under sections 302/34 and 307/34, P. P. C. by the learned Sessions Judge, Sialkot, for committing the murder of Abdus Sattar deceased and making a murderous assault on Roshan Din P. W. 13. Learned trial Judge vide his judgment dated 30th September 1967, came to the conclusion that the pro secution case against the accused‑respondents was full of serious discrepancies and flaws and was also surrounded by a great deal of doubts and rested upon extremely inadequate and untrustworthy evidence. Therefore, giving benefit of doubt to the accused‑respondents as a matter of right, he acquitted them of the charges under sections 302/34 and 307/34, P. P. C.

The State (appellant) has filed an appeal against the acquittal of all the four accused/respondents of the charges under sections 302/307/34, P. P. C. which was admitted by a Division Bench of this Court on 4th April 196& and bailable warrants were issued against the respondents. Similarly, Roshan Din complainant P. W. 13, has preferred Criminal Revision No. 331 of 1968, against the acquittal of the respondents under the same charges. Again a Division Bench of this Court directed vide its order dated 29th April 1968 that it should be heard alongwith Criminal Appeal No. 155 of 1968. We will dispose of both, the State appeal as well as the revision petition by a single judgment.

2. The occurrence took place on 10th December 1966 at 11‑00 a.m. in Mohallah Ram Tallai near the mosque situated at a distance of one furlong from Police Station City Sialkot. The matter came to the notice of the: police promptly at 12‑45 p. m. through Exh. P. E , the statement made by Roshan Din P. W. 13 while he was lying injured in the hospital. This state ment was recorded by Ch. Muhammad Asghar S. I. P. W. 17 and was attested by Dr. Muhammad Nasim P. W. 1. On the basis of this statement F. I. R. Exh. P. E./1 was registered at the Police Station on the same day by Sardar Shah M. H. C. P. W. 5.

3. Brief facts of the case according to Roshan Din complainant, are that he alongwith his five brothers was residing in house No. 21/807 Mohallah Ram Tallai Sialkot City. Underneath their house were three shops with numbers 444, 445 and 446 and shop No. 446 was in their possession and the same stood permanently allotted in their favour. The other two shops namely 444 and 445 were purchased in an open auction by Fazal Hussain accused/respondent from Rehabilitation Department. Shop No. 446 became a cause of dispute between the complainant's family on one hand and that of Fazal Hussain respondent's family on the other. A litigation ensued between the two factions by which relations between them were strained. It was given in the statement of this witness that Nur Elahi and Ehsan Elabi were real brothers whereas Fazal Hussain and Nur Hussain alias Kala respondents were also sods of the same falber. All the four respondents, according to the complainant, were related inter se. To settle this dispute an effort was made by Sh. Azmatullah P. W. 11 to bring some sort of settlement between the parties but unfortunately the efforts of Sh. Azmatullah remained inconclusive.

After this unsuccessful arbitration Nur Elahi etc. started extending threats to, the complainant party that if they would not vacate the shop voluntarily,. they would be forcibly ousted from their possession.

On the fateful day at 11‑00 a. m. Roshan Din complainant alongwith his brother Abdus Sattar deceased was present at the tea shap of Abdus, Sattar deceased (different than the one in dispute) near Chawk Allama Iqbal. According to the complainant, all the four respondents came to the shop of Abdus Sattar deceased and started abusing him. Nur Elahi and Ehsan Elahi respondents physically pulled out Abdus Sattar from his shop and all the four led him towards the mosque in Mohallah Ram Tallai. At that place on the road side Nur Elabi and Ehsan Elabi respondents took out their knives while Fazal Hussain came out with a sua, usually used for sewing the leather, and Nur Hussain alias Kala brought out a rembi. They attacked Abdus Sattar deceased and inflicted blows on his person with their respective weapons. On, his hue and cry Allah Rakha P. W. 15 and Allah Ditta P. W. 16 who were abo present nearby, went forward to rescue the victim. Taj Din P. W. 14. another brother of the complainant and the deceased, also joined them. In this matter initiative was taken by the complainant to rescue his brother but he was given a knife blow by Ehsan Elahi on his back of the chest. As a result of this injury he fell down. After his fall, the respondents ran away from the spot.

4. Ch. Muhammad Asghar S. 1. P. W. 17 on receiving a telephonic message from Muhammad Khalid Dispensar from D. H. Q. Hospital Sialkot with regard to the arrival of the deceased's body and Roshan Din P. W. in injured condition, reached the hospital at 12‑00 noon. On his query and the reply c ,f the Doctor that Roshan Din P. W. was in a fit condition to make a statement, the S.1. accordingly recorded his statement Exh. P. E. which was read over to him who signed it and admitted it to be correct. He took into possession shirt P. 7 and bunyan P. 8 of Roshan Din P. W. produced by Muhammad Khalid Dispenser vide memo. Exh. P. G. He prepared inquest report Exh. P. Q. and injury statement Exb. P. O. of the deceased and sent the dead body for post‑mortem examination under the escort of F. C. Asghar Ali and F. C. Qurban Ali.

Syed Khadim Hussain P. W. 18, the S. H. O., partly investigated this case. He recorded the statements of Sh. Azmatullah ere. P. Ws. During spot inspection he took into possession some blood‑stained earth from the place of occurrence vide memo Exh. P. K. in the presence of Nasim Ahmad P. W. 8 and Hamid Shah P. W. 9. He arrested Ehsan Elahi respondent who led the police to the recovery of knife P. 2 from his house which was taken into possession vide memo Exh. P. M. Nur Elahi, Fazal Hussain and Nur Hussain respondents were arrested by City Inspector Ch. Shaft Alam. Fazal Hussain respondent got recovered sua‑ P. 1 from his shop which was taken into possession ride memo Exh. P. L. He got prepared site plans Exh. P. D. and Exh. P. D./1 from Bashir Masih draftsman.

5. Dr. Muhammad Nasim P. W. 1 conducted post‑mortem examination on the dead body of Abdus Sattar deceased on 11 December 19o66 at 12‑05 p.m. and found 16 injuries on his person, out of which seven were incised wounds, two stab wounds, four abrasions and three contusions. In his opinion death occurred due to haemorrhage as a result of injury No. 2. Stab wound 1" x 1 /4" x 5" on the outer aspect of left side of chest 2J" above and behind the left nipple. It was directed inwards and downwards through the 6th inter space which was caused by a sharp‑edged pointed weapon and was sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 6, 9, 1:0, 11, 13, 14 and 16 were caused by a sharp‑edged pointed weapon while the others were caused by a blunt weapon. With the exception of injury No. 2 which proved fatal, rest of the injuries were simple.

Dr. Shameem Ataullah medically examined Roshan Din P. W. and found a stab wound on his left lumber region. According to him this injury was .declared dangerous to life, vide medico legal report Exh. P. S. This doctor .could not be examined as he was not available in the country and his signatures on the medico legal report were verified by Muhammad Khalid . Dispensar P. W. 3 who had been associated with the said doctor.

6. In support of its case the prosecution produced Muhammad Khalid '.Dispensar as P. W. 3 who identified the handwriting of Dr. Shameem Ataullah. Safdarullah P. W. 4, M. I. C /M. S. 30 certified that he recorded the dying declaration Exh. P. J. of Roshan Din complainant which was made "by him in a conscious condition duly attested by the doctor. P. W. 11 Sheikh Azmatullah was produced to support the motive while Roshan Din P. W. 13, Taj Din P. W. 14, Allah Rakha P. W. 15 came forward to testify the occurrence. P. W. 16 Allah Ditta who was also an eye‑witness of this case, was declared hostile while appearing before the trial Court and his statement before the C. M. was transferred to the Sessions file under section 288, Cr. P. C. Similarly, Muhammad Jamil P. W. 12, a recovery witness was declared hostile and his statement made by him before the Committing Magistrate was transferred to the Sessions file under section 288, Cr. P. C. The recovery was further supported by Khadim Hussain S.1. P. W. 18 and motive was also substantiated by the statement of Roshan Din complainant.

Reports of Chemical Examiner Exh. P. W. and Exh. P. Y. and that of Serologist Exh. P. W./1 and Exh. P. Y./1 were placed on the record to prove that the scrappings from knife P. 2 and sua P. I were stained with human :blood.

7. All the accused/respondents including Nur Elahi (since dead) while making their statements before the trial Court admitted that Nur Elahi and Ehsan Elahi were real brothers whereas Fazal Hussain and Nur Hussain were also real brothers and all the four were related inter se. They further admitted that the deceased was undoubtedly in wrongful possession of the shop pur chased by them for which they had a P. T. D. issued in their favour on 27th September 1969. It was further admitted by them that they did approach Sh. Azmatullah P. W. for arranging a conciliatory meeting and who held the same but unfortunately it did not come through. Admitting the case of the prosecution to this extent they denied their participation in the crime and also did not accept any recovery of incriminating articles at their instance. They simply professed their innocence but did not lead any defence. During the cross‑examination of the witnesses at the trial stage it was suggested to them that in fact one Sulleman and Anwar who were college students killed Abdus Sattar in self defence when he tried to give hockey stick blows on the head of said Sulleman and Anwar. It was suggested that Sulleman and Anwar were relations of the accused‑respondents but their names were omitted as they happened to be of young age and instead elder members of their family i. e. the present respondents were involved.

8. We have heard the learned counsel from both sides and have persued the record of the case and the impugned judgment, with care and caution. While going through the impugned judgment so challenged by the State, we ,find that the learned Sessions Judge, has split the case into two and has first of all dealt

with the case under section 307/34, P. P. C. against the acoused respondents for committing murderous assault on Roshan Din P. W. 13. He has given the following reasons for acquitting the respondents under this charge :

"Had there been any intention on the part of the accused Ehsan Ilahi to cause the death of P. W. 13 Rosban Din then the accused Ehsan Ilahi would, with the help of his own supporters, easily have inflicted more than one injury on P. W. 13 Roshan Din, which however, the said accused did not do so. None of the other co‑accused persons is alleged to have inflicted any sort of injury on P. W. 13 Roshan Din. Surprisingly enough, there is not the slightest indication in P. W. 13 Roshan Din's deposition at the trial that he made any attempt at all to protect his brother Abdus Sattar (now deceased) when the accused persons allegedly pulled the said Abdus Sattar out of his own shop in order to take him away forcibly to a spot just near their own shop in Moballah Ram Talai, Sialkot, for the purpose of allegedly murdering the said Abdus Sattar."

9. While adverting to the case under section 302/34, P. P. C. against the accused‑respondents he was influenced in acquitting them for the reasons given by him as under :‑

"At this stage it is essential to mention that out of the four eye‑witnesses of the occurrence who have been brought forward by the prosecution P. W. 13 Roshan is a brother of Abdus Sattar (the deceased) and P. W. 14 Taj Din is a brother of P. W. 13 Roshan Din and also of Abdus Sattar the deceased. Both these eye‑witnesses are, therefore, biased witnesses inasmuch as they were aware of the fact that a dispute existed between their brother Abdus Sattar (the deceased) on the one hand and the party of the four accused persons on the other hand in regard to the ownership and possession of shop No. 446 in Moballah Ram Talai, Sialkot. It is understandable that P. W. 13 Roshan Din and P. W. 14 Taj Din harboured resentment and hostility towards the four co‑accused persons not only after the occurrence of the death of their brother Abdus Sattar (the deceased) but also before his death. Out of the two other eye‑witnesses of the occurrence namely, P. W. 15 Allah Rakha and P. W. 16 Allah Ditta only P. W. 15 Allah Rakha can be considered to be an independent witness inasmuch as P. W. 16 Allah Ditta is a witness who during the trial of this case had to be declared hostile to the prosecution at the request of the Public Prosecutor on the ground that he had while giving evidence at the trial, departed from his own evidence before the Committing Magistrate in this case on 25th February 1967. P. W. 16 Allah Ditta admitted during his cross‑examination by the Public Prosecutor that he had made a false statement against the co‑accused persons before the Committing Magistrate and had done so under the pressure of the police. He also stated that he had been convicted and sentenced to simple imprisonment for six months under section 414, P. P. C. and had been arrested by the police on the same day on which he had been examined by the Committing Magistrate in the present case. In view of these circumstances it would be extremely unsafe to attach any importance to the evidence of P. W. 16 Allah Ditta in regard to the occurrence".

Similarly while discussing the evidence of P. W. 13 Roshan Din, learned Sessions

Judge came to the conclusion that as this witness made a claim to the entitlement of shop No. 446 which he could not substantiate by docu mentary evidence in his favour whereas the accused‑respondents fully proved that they were entitled to this shop as auction purchasers as well as through P. T. D., therefore, this witness was unreliable and his testimony regarding the occurrence could not be attached any credence. He further observed :‑

"It will be grossly unreasonable to disregard the fact that according to the statement made before me by P. W. 13 Roshan Din during his coss‑examination by the defence counsel the accused persons had no weapons in their hands when they pulled Ab;tus Sattar (now deceased) out of his shop and they did not cause any injuries to the said Abdus Sattar when they allegedly dragged him out of his shop and took him up to their own shop."

According to the learned Sessions Judge it was highly improbable and un natural because the bothers i. e. Roshan Din and Taj Din P. Ws. were expected to intervene to save their brother from being pulled out from the shop and the failure ef the prosecution to produce other residents of the con gested locality made the case‑of the prosecution entirely doubtful. He has quoted in his judgment various paragraphs and sentences from the evidence of Roshan Din P. W. to show that the locality was populated but none of the people present at that time came forward either to rescue the victim or to support the prosecution case. It was further observed that as it was admitted by Roshan Din P. W. 13 that accused did not cause any injury to his brother when they dragged him out from his shop, therefore, there was no common intention on their part to commit his murder at a later stage. While holding Allah Rakha P. W. as an independent witness, it was held by the learned trial Court that this witness only implicated Ehsan Elahi respondent for stabbing Abdus Sattar and no overt act was assigned by him to Nur Elahi respondent. Learned trial Court has also dilated upon discrepancies occurring in the statement of the three eye‑witnesses i. e. Roshan Din, Taj Din and Allah Rakha P. Ws. and held them a damaging factor to the case of the prosecution. We also find that the learned trial Court while discussing various aspects of the prosecution evidence has laid lot of stress on the fact that the complainant party made a tall claim of ownership of shop No. 446 whereas they miserably failed to substantiate it.

10. Learned Counsel for the appellant, (State) supporting the appeal against acquittal has submitted that the learned trial Judge has side tracked the issue and has given undue importance to insignificant and irrelevant matters which were hardly necessary to determine the fate of this case. It was contended that even if the complainant party failed to prove that shop No. 446 stood fully allotted to them by the Rehabilitation authorities never theless the fact remains that Abdus Sattar deceased or one of them was in wrongful possession of this unit. According to the learned counsel this was duly admitted by the accused‑respondents themselves in their statements before the trial Court under section 342, Cr. P. C. By this clear admission the question of entitlement has receded into insignificance. It was further submitted that the learned trial Judge has failed to discuss the impact of section 20. Cr. P. C. regarding the statement of Allah Ditta and Muhammad Jamil P. Ws. and thus he has fallen into an error by observing that they failed to support the prosecution case before the learned trial Court. What it was expected to do was to hold in an unambiguous manner as to which one of the statements made by them i. e. one before the C. M. or another before the trial Court, was near the truth. It was further contended that the presence of Roshan Din P. W. 13 could never be doubted as he was injured in this inci dent and his mere relationship with the deceased could not affect his veracity on this subject. Similarly, Allah Rakha P. W. who was time and again declared as an independent witness by the learned trial Court should have been believed regarding this incident and his testimony could not have been rejected under any circumstance. Regarding the evidence of recovery against Ehsan Elahi and Fazal Hussain respondenrs, it was argued that Muhammad Jamil P. W. in his statement before the C. M. has completely implicated them and the same stood supported by an independent witness Khadim Hussain S. I. While concluding his argument the learned counsel for the appellant (State) submitted that the defence suggested during the course of cross‑examination by the witnesses, was highly absurd as there was no reason for the complainant party to substitute the respondents with the actual culprits. If they had any venom or malice against the accused‑respondents and their family they could have easily added Suleman and Anwar instead of omitting them completely.

11. On the other hand learned counsel for the respondents has sup ported the judgment of the learned trial Court in extenso for the reason that the same had been arrived at after full discussions and had taken into con sideration all the pros and cons of the case. Therefore in its view there was no justification for setting it aside.

12. While perusing the evidence produced by the prosecution in support of its case and taking into consideration the statements of the accused respondents themselves, we have no hesitation to believe that shop No. 446 was in wrongful possession of Abdus Sattar deceased and the respondents were all out to regain its possession. This fact has been clearly made out from the statement of Sh. Azmatullah P. W. 11 and Roshan Din P. W. 13. While going through the statement of Sh. Azmatullah who is an independent witness against whom no aspersion has been cast by the defence in his cross‑examina tion, we are convinced that despite his efforts, no settlement could be arrived at and while leaving his place Nur Elahi (since dead) respondent expressed his annoyance over the failure of the settlement and gave an indication that this dispute would be settled by other accused‑respondents with Abdus Sattar deceased. The defence has led nothing on the record to dislodge the statement of this witness which completely destroys the argument of the learned counsel for the respondents that in fact there existed no dispute over this shop between the parties and if there was any, the accused respondents wanted to settle it through due course of law. One can easily imagine the grievance of a rightful owner against the person who is usurping his entitlement by sheer audacity and stubbornness and therefore, it would look reasonably probable that the party so aggrieved would be inclined to take the law into its own hands to achieve what they have failed to achieve otherwise through peaceful means. The defence has also failed to point out that the deceased had some other enemies who had a positive motive to destroy him or it was a case of a murder which had occurred at some deserted place where the witnesses were not expected to be present at the time of occurrence. What is admitted by the defence and has been brought on the record by the prosecution is that the occurrence took place at 11‑00 a. m. in a congested locality where a number of shops were open and thus the presence of the witnesses in no way could be considered either improbable or unnatural. Therefore. we are of the considered opinion that occurrence took place ‑where the blood‑stained earth was found by the police and as stated by the P. Ws. We are,also of the firm conviction that the trouble only existed between the complainant party and the respondents and no body else was involved in it.

13. The prosecution evidence in this case consists of two categories of evidence i. e. ocular and circumstantial. The ocular testimony is provided by Roshan Din P. W. 13 who himself received a very serious injury in the back of his chest and. immediately reported the matter to the police through Exh.) P. E. and before the Magistrate through Exh. P. J. in the form of dying declaration. He stood corroborated by the testimony of his own brother Taj Din P. W. 14 and two independent witnesses namely Allah Rakha P. W. 15 and Allah Ditta P. W. 16. With the exception of Allah Ditta P. W. who was declared hostile at the time when he was being examined before the trial Court, the rest of the two witnesses have corroborated the testimony of Roshan Din P. W. on all substantial points. It is now a settled law that mere relationship of the witnessss with the deceased, in no way discredits their testimony unless and until it is shown that they had any motive to falsely implicate the accused persons. Learned trial Court has held their testimony as biased and hostile simply for the reason that they were related to the deceased and they had strained relations with the respondents over the dispute of shop No. 446 which the deceased was holding in his wrongful possession. The mere fact that the deceased was in a wrongful possession, leads to a strong inference that it would be the respondents who would like to dislodge him and thus would initiate the assault. If they would have not done so, there would be no reason for the complainant party to name them as their assailants and killers of Abdus Sattar deceased. The way these witnesses have narrated the incident, inspires confidence in our mind as it would be natural for the assailants to warn the deceased of the consequences for remaining in wrongful possession of the shop and this is why we find in their statements that the assailants firstly demanded the possession of the shop and on the refusal of the deceased, they pulled him out and took him towards their own shop to coerce him to deliver the possession. It could also be considered an intelligent move on the part of the respondents to take the victim near their shop so as to show that it was the deceased who wanted to pick up quarrel with them but the fact remains that a person who was sitting snug by retaining a shop in his wrongful possession would not go forward to pick up the gauntlet when he had no need to do so. The vehement criticism of the learned trial Court that it was highly unnatural for a brother to see his brother being killed and standing apart as an idle spectator, falls to the ground when we find that Roshan Din P. W. did go forwasd to rescue Abdus Sattar deceased and in that process himself received a serious and dangerous injury on his vital part. This infliction of injury on his person would naturally deter Taj Din P. W. as well as others in the bazar to meddle any furtber at the risk of their own lives. Learned trial Court has wrongly assessed that every body who witnesses the murder being committed or assault being made is a Don Quixote or a highly chivalrous person who must come forward to rescue a person in distress. Similarly, it is common feature in our society that usually people do not offer themselves as witnesses to suppor the prosecution case before the police or in the Court as it entails loss o time as well as earns enmity of those who are being prosecuted. In the instant case, it was more likely that shopkeepers of the bazar would have no sympathy with the complainant party, as their attitude of dog in the manger, was neither ethical nor commendable. This could also be a probable reason for their keeping away during the investigation of this case. Learned trial Court has not taken into consideration these aspects of the case and has jumped to an unwaranted conclusion that as people from the locality have not come forward in good numberlas eye‑witnesses, therefore, the case, of the prosecution) was doubtful.

14. While dealing with the contention of the learned counbel for the appellant (State) regarding the lapse committed by the trial Court in giving due weight to the testimony of Allah Ditta P. W. who was declared hostile, we find that section 288, Cr. P. C. only comes into play when the trial Court after recording the evidence of a P. W. comes to a conclusion that the statement made before it was not true and the evidence given by him at an earlier stage before the C. M. was more near the truth. Once the learned trial Judge comes to this conclusion, he is required to give his reasons and transfer the same to his own file. In the instant case Allah Ditta's statement has been transferred to sessions file and thus it was incumbent upon the, trial judge to give sound reasons before he changed his mind and wanted to reject the testimony so transferred. In the absence of such rea oning the evidence so transferred under section 288, Cr P. C. is a good evidence and can be taken into account against the accused for his conviction. As regards the minor discrepancies so occurring in the testimony of the eye‑witnesses, we are of the opinion that such like variations are natural to occur, when the state‑ t ments are recorded after a considerable delay and are of the view that such small matters in no way destroy the entire value of their evidence or in any manner make the case of the prosecution doubtful. In the case of Roshan Din P. W. we are of the firm belief that the learned trial Judge was not justified to discard the evidence of this witness whose presence at the spot being an injured person, could not be doubted in any manner whatsoever. We also do not find any cogent reason given by the trial Court for rejecting the testimony of Allah Rakha P. W. whom the Court found an independent witness. Similarly the testimony of Taj Din P. W. could not be discarded merely for the reasons that he happened to be a brother of the deceased. In fact the prosecution has produced an impressive evidence in support of its case which should have been acted upon by the trial Court.

15. The occular testimony in this case as discussed above, has been further corroborated by the evidence of recovery of sua P. 1 and knife P. 2 at the instance of Fazal Hussain and Ehsan Elahi respondents, respectively. Both these weapons were found to be stained with human blood and the place of their recovery was within the exclusive knowledge of these two respondents. Muhammad Jamil P. W. 12, although was declared hostile but) the learned trial Court considered his statement as unreliable before it and transferred his statement made by him before the C. M. to its file under section 288, Cr. P. C. While going through the statement of Muhammad Jamil P. W. made by him before the C. M., we find that he fully supported the

recovery of sua P. 1 and knife P. 2 and therefore, the same could be used against the accused‑respondents as a substantial piece of evidence. Even if we, for a moment, keep out of consideration his statement taking into account the argument of the learned counsel for the accused‑respondents that he is a self condemned liar, still we are left with the statement of Khadim Hussain S. I. P. W. who is an independent witness and has no motive to falsely implicate Fazal Hussain and Elisan Elahi respondents. Reliance is placed on Muhommad Ahmad v. State (P L D 1970 S C 72).

16. While adverting to the reasoning of the learned trial Court recording, the acquittal of Fazal Hussain and Ehsan Elahi respondents under ' section 307/34, P. P. C., we find it absolutely without substance. While going through the observation made by it regarding this charge as given in the earlier part of our judgment, we are constrained to observe that this reasoning is highly fallacious, artificial and capricious. The fact of Roshan Din P. W. being injured is established beyond any reasonable doubt by virtue of medical evidence on the record, dying declaration made by him before the Magistrate and admission of the dispensar that this witness was brought to the hospital bleeding and unconscious. To say that as he received only one blow at the hand of Ehsan Elahi respondent and the same was not repeated, therefore, there was neithor intention on the part of Ehsan Elahi to kill him or his com‑ C patriots to follow the suit, is highly preposterous proposition. Intention is always gathered from the strength of the blow and the injury caused on the person of the victim as was held in Sewa Singh v. Emperor (1). Similarly the other reasoning that if the assailants wanted to kill Abdus Sattar deceased, they would not have pulled him out of his shop and taken hid to their own shop, is equally devoid of force. As discussed earlier, the assailants first of all wanted to achieve their object of regaining the possession of shop No. 446 through coercion and intimidation but when frustrated, they for mulated the intention to kill at the spur of moment and launched attack on the deceased.

17. While taking into consideration the evidence of motive, the occular testimony of injured witness Roshan Din duly corroborated by Taj Din P. W. 14, Allah Rakba P. W. 15 and the statement of Allah Ditta P. W. 16, before the C. M, coupled with the evidence of recovery of incriminating articles i. e. sua P. 1 and knife P. 2 at the instance of Fazal Hussain and Ehsan Elahi respondents respectively and supported by the medical evidence, we are of the considered opinion that the prosecution has established its case beyond reasonable doubt against all the accused‑respondents under sec tion 302/307/34, P. P. C. for committing the murder of Abdus Sattar deceased and making a murderous assault on Roshan Din P. W.

18. The result is that we accept both the appeal and the revision petition and set aside the judgment of the learned trial Court and convict and sentence Ehsan Elahi, Fazal Hussain and Nur Hussain alias Kala respondents to imprisonment for life under section 302/34, P. P. C. Nur Elahi respondent has since died, his appeal is abated. Ehsan Elahi respondent is further sentenced to five years' R. I. under section 307, P. P. C. His sentences under sections 302 and 307, P. P. C. will run concurrently.

s. Q. Appeal accepted.

(1) A I R 1930 Lah. 490

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