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Criminal Appeal No. 231 of 1980, decided on 28th April, 1984.

(On appeal from the judgment and order dated 31‑1‑1978 passed in Criminal Appeal No. 901 and Murder Reference No. 251 of 1976).

---Art. 185(3)‑Penal Code (XLV of 1860), S. 302/34‑Murder Evidence‑Leave to appeal granted to consider whether consistent with principles of safe dispensation of justice, conviction of convicted appellant could be maintained on sole evidence of one prosecution witness, which was not accepted as against co‑accused acquitted by High Court.

---------S.302/34 ---Murder‑‑Evidence‑Nothing found in evidence of sole prosecution witness to discredit same‑No particular consequence emerging from lengthy cross‑examination of such witness to bring in Doubt culpability of accused‑Petty quarrel over payment of dues unnecessarily provoking two accused to take revenge by attacking deceased recklessly with knives‑Held, no doubt can be entertained as to participation of accused in murder of deceased‑Judgment of High Court upheld.

Sh. Shaukat Ali, Senior Advocate Supreme Court and Mahmood A Advocate‑on‑‑Record (absent) for Appellants.

Ghulam Ahmad, Advocate Supreme Court and Ejaz Ahmad Khan, Ad vocate‑on‑Record (absent) for the State.

Date of hearing : 28th April, 1984.

.‑‑‑This appeal, by special leave, arises from the judgment of the Lahore High Court, dated 31st of January, 1978, by which the conviction of appellants, Abdur Rashid and Abdul Aziz under section 302 read with section 34, P. P. C., was maintained, but the Murder Reference was rejected as the capital sentence awarded to Abdul Aziz was altered to imprisonment for life.

Leave to appeal was granted to consider whether consistent with the principles of safe dispensation of justice the conviction of the appellants could be maintained on the solitary evidence of Abdul Aziz (P. W. 3) whose evidence was not accepted as against Abdul Hamid, who was acquitted by the High Court.

The facts, winch led to the trial of the appellants, were that Siraj Din, deceased had bought furniture from the appellants and yet had to pay Rs. 225 as the balance price. He had a sweetmeat shop in the Kabir Street No. 25 in the city of Lahore and opposite to it there was a milk and curd shop of his brother Abdul Aziz (P. W. 3). At about 6‑00 p. m. on 26th of September 1973, Abdur Rashid came to the shop and demanded money from Siraj Din upon which Siraj Din told him that this was a paltry amount and he would square it up. This answer did not satisfy Abdur Rashid who got provocated and said that he would extract the amount the same day otherwise he would be in trouble. Thereupon at 7‑00 p. m. he returned along with Abdul Aziz and one other person armed with knives and Sota respectively and attacked Siraj Din. Abdur Rashid gave three stab blows while Abdul Aziz caused one blow on his stomach. Seeing all this Abdul Aziz (P. W. 3) proceeded to intervene, but he was prevented from doing so as the one who was armed with Sota inflicted an injury with it. The incident was also witnessed by Habib and Abdul Sattar. The deceased fell on the ground and the appellants and the unidentified assailant thereupon decamped from there. The deceased was thereafter taken to the Mayo Hospitai where he was examined and so also Abdul Aziz (P. W. 3) who had a blunt weapon injury. Siraj Din later died in the hospital. He had as many as four incised and two injuries caused with. a blunt weapon Muhammad Idris, A. S. I., on learning about the critical condition of Siraj Din at the hospital, proceeded thereto, but was not able to record his statement as he was not in a position to give it. He thereupon recorded the statement of Abdul Aziz (P. W. 3) at 8‑15 p. m., which was treated as an F. I. R. in the case. Later the name of Abdul Hamid transpired ; and thereafter on 29th September, 1973, he appeared before Muhammad Idris, A. S. I. (P. W. 9) and handed over a Sota. Further, on being arrested on 30th September, 1973, Abdul Aziz led to the recovery of a knife from his house, which was laying under a cot. Similarly Abdul Aziz also produced a knife from the "Parchhatti" of the upper storey of the house, Both these articles were reported to be stained with human‑blood.

The appellants pleaded in defence that they were arrested on suspicion as the unknown persons who had quarrelled and injured the deceased were not identified. They denied having produced the knives.

At the trial, the prosecution examined Abdul Ghaffar (P. W. 2) and Abdul Aziz (P. W. 3) as eye‑witnesses. The other two witnesses mentioned in the F.I.R. were, however, abandoned. The trial Court while assessing the testimony of Abdul Aziz (P. W. 3) held that he was a simpleton and although in his supplementary statement he gave out the name of Abdul Hamid the third brother of the two appellants nonetheless he did not make any serious departure from his earlier 'Version, which could adversely affect his evidence, In spite of the fact that he was brother of the deceased, the trial Court held him to be a natural witness as his shop was opposite to that of the deceased and it was, therefore, his presence could not be denied and as to the dis crepancies and improvements in his evidence, the trial Court disregarded them holding that they were not of a serious nature. In regard to Abdul Ghaffar (P. W. 2) his presence was also not doubted at Fancy Laundry as he had gone to collect his clothes from there. He was an independent witness and himself had no axe to grind in involving the appellants. He full) supported the prosecution case in regard to the culpability of the appel lants and the acquitted accused. In his case the discrepancies and improve ments were also disregarded as being inconsequential. In the ultimate analysis, the trial Court held that his evidence inspired confidence as that of being a natural witness. On an analysis of the evidence of recoveries of knives the trial Court held that the prosecution had proved the factum of the recoveries. All this evidence led the trial Court to convict the appellants for murder, but as it was Abdul Aziz who caused the fatal blow, he was sentenced to death and also to pay a fine of Rs. 1,000 or in default to undergo R. 1. for one year. The other two namely, Abdul Rashid and Abdul Hamid were each sentenced to imprisonment for life.

On appeal and reference, the case of Abdul Hamid was distinguished as Abdul Aziz, who had known him since childhood failed to identify him as his assailant, and, therefore, did not mention his name in the F. I. R., which was promptly lodged after the occurrence. As for Abdul Aziz it was held that he was a milk and curd‑seller and that his shop being opposite to that of the deceased his presence could not be discounted. Additionally he had a lacerated injury caused with a blunt weapon, which corroborated his version that he had gone to intervene when he was inflicted a stick blow. As far Abdul Ghafoor, the High Court held that he was a chance witness and as he failed to produce the receipt issued by the Laundry for the return of his clothes, his presence was doubtful, as he would not have been able to get back his clothes. Further, he had modified his earlier version that the attack on the deceased was preceded by a quarrel between the parties, which fact be denied at the trial. This also led the high Court to think that he was not a reliable witness as he had deliberately prevaricated to bring his evidence in line with the prosecution case. The evidence of recoveries was disbelieved nonetheless the High Court the conviction of the appellants on the sole testimony of Abdul Aziz (P. W. 3) holding, as it did, as under :

"On summing up the entire evidence we find that the case of the prosecution finds support from the testimony of Abdul Aziz (P. W. 3). No doubt he was the brother of the deceased but then he was a natural witness and had no serious enmity with appellant prior to the occurrence. Further, in so far as Abdul Aziz and Abdur Rashid are concerned his testimony finds support from the F. I. R., which was recorded immediately after the occurrence when there was hardly any time for him to fabricate a false story. We therefore, hold that Abdul Aziz and Abdur Rashid, appellants responsible for causing the death of the deceased."

Abdul Hamid was, accordingly, acquitted. As for' the sentence of death passed on Abdul Aziz, the High Court reviewed and altered it to imprisonment for life while maintaining the sentence of fine.

It was urged that the evidence of Abdul Aziz (P. W. 3) was unreliable had subsequently implicated Abdul Hamid, who was not mentioned in the F. I. R. Although he was known to him from childhood. Neces sarily, therefore, his evidence could not be believed without independent corroboration. As to the participation of more than one person there is ample evidence on record to sustain it. The persusal of the medic.'' evidence shows that two knives were used causing injuries of different dimensions. Besides, two other injuries were found to have been caused by a blunt weapon. This goes a long way to establish the participation three persons, and if at all the identity of the third person was not obvious, it does not mean that the evidence of Abdul Aziz was unreliable as to the number of assailants particularly when he had himself suffered an injury with a blunt weapon. There did not also exist any previous enmity, whit could have prompted Abdul Aziz to falsely implicate the appellants. In this background the High Court while appraising the evidence held

"The F. I. R. (Exh. P. A.) contains the earliest version of Abdul Aziz. (P. W. 3) about the occurrence. It was recorded by the police within two hours of the occurrence. There was thus not enough time for Abdul Aziz (P. W. 3) to fabricate a story. It is also to be noticed that there was no enmity whatsoever between this witne ss and the appellants at the time of the occurrence hey bad been, Mohalladars right from their infancy and Well‑acquainted with each other. There was no occasion for Abdul Aziz (P. W. 3) to falsely implicate the appellants. We, therefore, think that the F. I. R. in this case can be used for the purpose of corroborating to testimony of Abdul Aziz (P. W. 3)."

We have also examined the evidence of this witness and we four, nothing to discredit it even if it stood alone. He was subjected to lengthy cross‑examination, but nothing of any particular consequent emerged to bring in doubt the culpability of the appellants. It was a Petty quarrel over the payment of dues and we feel that the motive could not have been fabricated. The appellants having been unnecessarily provoked by the non‑payment, of the amount took upon themselves to take revenge and recklessly attacked the deceased with knives, which finds assurance from the different dimensions of the injuries on the deceased.

Accordingly, there cannot be a doubt as to the participation of both the appellants and we would thus uphold the judgment of the High Court, and dismiss the appeal.

S. Q. Appeal dismissed.

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