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Criminal Appeal No. 206 of 1976, decided on 1st October, 1979.

(On appeal from the judgment and order of the Lahore High Court dated 22‑10‑1975 in Cr. A. 71‑74/BWR and in M. R. No. 12‑74/BWR).

‑‑‑ S. 302‑Murder‑Evidence an motive‑Always a weak piece of evidence‑Such evidence cannot furnish corroboration of evidence of eye‑witness.‑[Evidence‑Motive]

‑‑ S. 302‑Murder‑Evidence‑Concurrent findings of Court's' below that evidence of independent recovery witness was sufficient to prove recovery of blood‑stained clothes and hatchet from accused‑No error of law found in such concurrent finding‑Held, such recoveries were sufficient to corroborate evidence of eye‑witness. ‑[Evidence Recovery]. Recovery].

‑‑ Art. 185 read with Penal Code (XLV of 1860), S. 302 Sentence‑Supreme Court does not normally interfere with question of sentence unless sentence passed not a legal sentence.‑[Sentence].

Inayat Hussain Shah, Advocate‑on‑Record for Appellant.

Sheikh Riaz Ahmad, Assistant Advocate‑General (Punjab) and Sheikh Ijaz Ali, Advocate‑on‑Record for the State.

Date of hearing : 1st October, 1979.

.‑Mst. Jindan was murdered in Chak No. 106/Dera Nawab Sahib, District Bahawalpur on 17th November, 1973 at about 2‑00 P.m. The weapon used was a hatchet and the appellant was tried and convicted for the murder by the Sessions Judge, Bahawalpur and sentenced to death. The sentence pf death was confirmed by the Lahore High Court. Hence this appeal.

In order to prove its case the prosecution relied on the evidence of eye‑witnesses, on evidence of motive and on evidence of recoveries. The motive for the crime was that the son of Mst. Jindan had murdered the appellant's sister sometime before the occurrence. The appellant admitted that the son of the deceased had murdered his sister about. nine or ten months before the occurrence, but he denied that he had taken revenge or killed the deceased. He did not produce any evidence in his defence, but he said that the witnesses had deposed against him on account of enmity,

Although three persons were alleged to have witnessed the occurrence, the prosecution examined only Mst. Mubarik, the mother of the deceased and Shah Mohammad as eye‑witnesses of the occurrence The other eye -witness Shah Mohammad turned hostile in both the Courts although he had lodged the ‑ F. I. R. However, as the cross‑examination of Shah Mohammad in the lower Court supported the prosecution case, this statement was duly brought on the record under section 288 of the Criminal Procedure Code. And the learned Sessions Judge convicted the appellant on the basis of the evidence of Mst. Mubarik, the lower Court statement of Shah Mohammad, evidence of motive and evidence of recoveries. The High Court agreed with this appreciation of evidence Hence this appeal.

Mr. Inayat Hussain criticised the evidence of Mst. Mubarik on the ground that she was very old and infirm and on the ground that she was inimical to the appellant. We are disturbed by the fact that Mst. Mubarik had some difficulty in identifying the appellant in the Sessions Court, but the learned Sessions Judge was satisfied that she was not suffering from defective eye‑sight, therefore, in the circumstances, we would only observe that Mst. Mubarik's evidence cannot be accepted unless it is corroborated by independent evidence of a very reliable nature. And, the evidence of motive cannot possibly furnish sufficient corroboration of Mst. Mubarik's evidence, because evidence of motive is always a weak piece of evidence. Similarly, in the circumstances of the case, there is force in Mr. Inayat Hussain's submission that Shah Mohammad's lower Court statement is too weak a piece of evidence to furnish corroboration of Mst. Mubarik's evidence. Therefore, we have scrutinised with the assistance of learned counsel the evidence about the recoveries and it was because we were disturbed by this aspect of the case that we had granted leave.

Nazir Ahmad gave evidence about the recoveries and we are satisfied that he was a totally disinterested witness. However, according to Mr. Inayat Hussain, the difficulty in the way of the prosecution was that the recoveries had not been secured by the Police from the appellant, but they had been produced by the said witness, therefore, this evidence could not furnish sufficient corroboration of tainted ocular evidence.

We are not able to accept this submission. It is true that the blood stained hatchet and the blood‑stained clothes of the deceased (which were proved to be stained with human. blood) were not secured from the appellant .by the Police. But, this was because according to the prosecu tion, the appellant had after committing the crime gone to the local Lambardar one Nazir Ahmad to produce him before the Police. Then Nazir Ahmad, the Lambardar, had taken the appellant to P. W. Nazir Ahmad and then the two Nazirs had produced him before the Police. In this background, it is obvious that the evidence of the Police Officer about the recoveries is of very limited evidentiary value and the case turns on the evidence of the witness Nazir Ahmad. This witness said in his evidence "Accused Haidaru had asked us to produce him before the Police so that his family and children may not be harassed. Accused Haidaru had a kulhari Exh. P. 1 with him which is present in Court. This kulhari was blood‑stained.

The clothes which accused Haidaru was wearing had blood stains thereon. The Police had removed the clothes of accused Haidaru at the time the same accused was produced before the Police".

We observed that the witness was a completely independent witness. ire also find that he was not even cross‑examined on any suggestion of enmity. Therefore in the circumstances, the Courts were entitled to hold that this witness's evidence was sufficient to prove the recoveries. And, that is their concurrent finding and as there is no error of law in this concurrent finding we are unable to accept Mr. Inayat Hussain's submis sion that the prosecution has failed to prove the recovery of the blood stained clothes and hatchet from the appellant. And as, these recoveries are sufficient to corroborate Mst. Mubarik's evidence, the appellant's appeal against his conviction fails.

There remains for consideration the question of the sentence passed against the appellant, and Mr. Inayat Hussain submitted that it was not a fit case for the imposition of the death penalty because even according to the prosecution the son of the deceased had murdered the appellant's sister and this furnished a provocation to him. Although the appellant was not justified in taking the law into his own hands, bearing to mind the conditions in the country, we venture to think that it would have been better if the appellant had been sentenced to life imprisonment. However, this Court does not normally interfere with the question of sentence unless the sentence passed is not a legal sentence. But, unfortunately for the appellant, as it cannot be said in the circumstances of the case that the sentence passed was not a legal sentence, we are compelled to dismiss the appeal. It would however, be open to the appellant to file a mercy petition for mitigation of the sentence. With these observations the appeal is dismissed.

Appeal dismissed.

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