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Criminal Appeal No. 555 of 1978, decided on 26th March, 1980.

‑‑‑S. 302‑‑Murder‑‑Evidence‑‑Corroboration‑‑Eye‑witnesses closely related to deceased and belonging to faction of complainant‑‑Eye‑ witnesses being hostile towards accused party had motive to enlarge net and to implicate as many members of accused party as possible‑ Interested ocular testimony to be considered with abundant caution and to be accepted only to extent which was corroborated by an independent source‑‑Ocular testimony corroborated by factum of recovery of blood stained weapon of offence‑‑Sentence of accused maintained‑‑No weapon of offence recovered from acquitted co‑accused‑‑Acquittal of such accused justified.

‑‑---‑S. 302‑‑Criminal Procedure Code (V of 1898), S. 103‑‑Recovery‑ Interested witnesses of recovery‑‑Evidence of Investigation Officer regarding recovery has to be considered by Court in such cases‑ Investigating Officer is as good attesting witness as any independent person provided investigation has not been conducted dishonestly‑ Investigation not found to be dishonest, testimony of Investigating Officer regarding recovery believed.‑‑[Recovery].

-----S. 302‑‑Criminal Procedure Code (V of 1898), S. 103‑‑Recovery effected on last date of remand‑‑Nothing found objectionable if recovery could not be effected earlier‑‑Recovery believed.‑‑[Recovery].

‑‑---‑S. 302‑‑Criminal Procedure Code (V of 1898), S. 103‑‑Recovery effected from an open place, accessible to every one‑‑Only accused knowing where he had thrown weapon of offence‑‑Held, to consider that rain must have washed away blood stains from weapon of offence, lying on roof of tube‑well, was merely to proceed to realm of speculation‑‑Recovery believed.‑‑[Recovery].

--‑‑‑S. 302‑‑Investigation‑‑Delay in sending recovered weapons for analysis, on part of police‑‑Deprecated‑‑Duty of police to send forward recovered weapons of offence for analysis as soon as possible‑‑Recovered weapon remaining in custody of police for about one and half months before sending it to Chemical Examiner‑‑Investigation not found to be conducted dishonestly‑‑Recovery believed.‑‑[Recovery].

‑‑‑S. 302‑‑Sentence‑‑Mitigation‑‑Accused having murdered deceased because deceased was one of those who had been implicated in murder of father of accused twenty years ago, held, was a mitigating circumstance for reduction of sentence‑‑Death sentence reduced to life imprisonment.‑‑[ Sentence].

Ajun Shah v. The State P L D 1967 S C 185 and Shera and others v. The State 1976 P Cr. L J 1028 ref.

R.A. Awan for Appellant.

Sh. Muhammad Sharif Oppal for the State.

Sardar Muhammad Akram for the Complainant.

Dates of hearing: 25th and 26th March, 1980.

Niamat Ali son of Inayat Ali, aged 24 armed with Datar, has been convicted under section 302, P.P.C. for the murder of Ahmad Din deceased, aged 55, and was sentenced to death plus fine of Rs.5,000 or in default to undergo one year's R.I. and if the fine was realized from him, half of the same was ordered to be paid to the heirs of the deceased as compensation, vide judgment, dated 13‑6‑1978 of the ex‑officio Additional Sessions Judge, Lahore. The appeal of the convict as well as reference for the confirmation of death sentence awarded to him are being taken up and dispose of together by this judgment.

Four of the co‑accused of the appellant, namely, his two brothers Manzoor and Shaukat, armed respectively with .12 bore pistol and hatchet, his paternal uncle Attaullah, armed with Toka, and his paternal cousin Natha, armed with Takwa, were given the benefit of doubt and acquitted.

2. The occurrence took place at 5‑30 a. m. on 24‑7‑1974 in the maize field of Inayat Ali in village Jhugian Jhabu, at a distance of four miles from Police Station Misri Shah. Statement Exh. P.A. was made by Noor Muhammad P.W.3, first cousin of the deceased, at 7‑15 a.m. on the same day at Aamer Road, Shad Bagh, Lahore, and it was recorded by Muhammad Ashraf, S.I., P.W.12, who happened to be present their on Gusht duty. On the basis of the aforesaid statement formal F. I. R. Exh .P.A./1 was registered at Police Station Misri Shah on the same day at 8‑15 a.m. by Muhammad Safdar, S.I. P.W.7.

3. The motive for crime, as stated in the F.I.R., is that Inayat Ali, father of Niamat appellant as well as Manzoor and Shaukat, acquitted co‑accused, brother of Attaullah, acquitted, and uncle of Natha, acquitted co‑accused, was murdered on 10/11‑8‑1955 about 19 years before the present occurrence when Niamat appellant was about 4/5 years old. The deceased was implicated alongwith others in that murder case and he was convicted as well as sentenced to death by the trial Court. However, in appeal before the High Court he was acquitted. The case of the prosecution is that the accused‑party frequently used to state that they would avenge the death of Inayat Ali and in this respect before the present occurrence steps were being taken to work out a reconciliation between the accused and the complainant parties through the respectables of the village. But the accused party would not agree to it. It is stated that the murder was committed of the deceased in order to avenge the death of Inayat Ali, father of the present appellant. The F.I. R. in respect of the murder of Inayat Ali is placed on the record as Exh.P.F.

4. The prosecution produced three eye‑witnesses of the occurrence and these are Noor Muhammad P.W.3, first cousin of the deceased, Muhammad Yousuf P.W.5, son‑in‑law of the deceased and Muhammad Sarwar P.W.4, son of the Sala of the deceased. Inayat an unconnected person was cited as an eye‑witness but was given up as won over. All the three eye‑witnesses produced are closely related to the deceased and are admittedly inimical towards the accused party. The father of Muhammad Yusuf P.W. was also named as one of the accused person in the earlier murder case Exh.P.F. In that view of the matter the ocular testimony has to be considered as interested and it should be accepted with abundant caution.

5. The appellant was arrested on 2‑8‑1974 by Ali Nasir, I.P. , P.W.8. Manzoor and Shaukat, acquitted co‑accused were also arrested on 2‑8‑1974 alongwith Natha acquitted co‑accused. Ataullah, acquitted co‑accused was arrested on 6‑8‑1974. At the instance of the appellant blood‑stained Datar, P.3 was recovered from the Kotha of the tube‑well belonging to Inayat Ali and it was taken into possession vide Exh. P.D. on 15‑8‑1974. The attesting witnesses are Noor Muhammad P.W.3, Muhammad Yousuf, P.W.5 and Muhammad Ashraf, S.I., P.W.12. No recovery was effected from any of the acquitted co‑accused. According to the report of the Serologist, Exh .PH /1, at page 18 of the paper book scrappings from Datar, P.3 were found to be stained with human blood.

6. The appellant as well as the acquitted co‑accused in their statements before the trial Court denied having participated in the occurrence. The appellant disowned the recovery of Datar P.3 and all of them stated that they had been falsely implicated due to enmity of the P. Ws. The case of the prosecution is that the deceased had quarrelled with some of the relatives and proceedings had been taken in this connection by the police under section 107/151, Cr.P.C. in order to bind the parties to maintain peace and that, therefore, one of the enemies of the deceased, murdered him in the early hours of the morning while it was still dark and that it was an un-witnessed murder.

7. Dr. Sabir Ali, P.W.2, conducted post‑mortem examination on the dead body of the deceased at 11‑10 a.m. on 25‑7‑1974 and found on his person eight incised wounds on the head, forehead, left side of head, scalp, left ear, chin, left lower jaw and front as well as sides of the neck. All the major vessels of the neck were cut. At least three attempts were made in cutting the throat. There were seven more incised injuries on the left shoulder, left arm, left chest, back of the chest, right scapular region, right ring finger, right little finger, etc. and there was one abrasion on the left arm and the other on the shoulder. In his opinion, most of the injuries had been caused by sharp‑edged weapon ‑ and individually as well as collectively were sufficient to cause death in the ordinary course of nature. There were two abrasions on the top of the left shoulder and left arm. These abrasions could have been caused by friction of the body against some hard or rough substance. The possibility could not be ruled out that all the injuries were caused on the person of the deceased by one weapon.

8. In the F.I.R. the occurrence is reported to have taken place in the following manner.' On the fateful day the deceased was proceeding to get milk from his Dera. When he reached near the field of Inayat Ali, the appellant and the acquitted co‑accused armed as described above, who were hiding, suddenly emerged and attacked the deceased and started beating him with their respective. weapons. Noor Muhammad P.W.3 and Muhammad Yusuf P.W.5 were corning in the same direction in the Rehra and they saw the occurrence. At that time Muhammad Sarwar P.W.4 and Inayat (given up as won over) were also nearby and they too saw the occurrence. The accused party raised a Lalkara that if any one came near, they would kill him. Consequently, since the eye‑‑witnesses were empty‑handed they out of fear did not advance in order to rescue the deceased, Manzoor, acquitted co‑accused who was armed with pistol fired in the air threatening the eye‑witnesses that he would kill them. The deceased died on the spot as a result of the injuries sustained by him. Any way no one was injured due to the fire of Manzoor, acquitted co‑accused because the shot had missed. Leaving behind Muhammad Sharif and Ashiq to guard the dead body, Noor Muhammad P.W. proceeded to lodge the report.

9. We have heard learned counsel for both the sides carefully perused the record. It is evident from the record that the accused party and the complainant party had a long standing enmity between them and in the blood feud, father of the appellant had been murdered at the hands of the deceased about 19 years prior to the present occurrence. The prosecution has produced evidence to the effect that at that time the appellant was only 4/5 years old. The previous F.I.R. relating to that murder is Exh .P.F. in which the deceased was implicated among others. The father of the appellant had been cruelly murdered while he was sleeping on the roof of his house alongwith his wife and small children. Thereafter, it is the case of the prosecution that when the sons of Inayat Ali deceased grew up, they had been expressing the desire of avenging the death of their father from the deceased and in this connection steps had been taken by the complainant side to enter into some kind of compromise with the accused party. However, the accused, party did not agree. In the light of this motive, it is evident ‑that parties were inimical towards each other. The eye‑witnesses produced by the prosecution in the instant case are closely related to the deceased and belonged to the faction of the complainant party. The father of one of them was named as an accused person alongwith the deceased in the earlier murder case. Since the eye‑witnesses were hostile towards the accused party, they had a motive to enlarge the net and to implicate as many members of the accused party as possible in the murder of the deceased. Thus, the ocular testimony being of an interested nature, the trial Court had rightly proceeded to consider the ocular testimony E with abundant caution and to accept the same only to the extent that it was corroborated by evidence coming from an independent source. As it has been pointed out above, no weapon of offence had been recovered from any of the acquitted co‑‑accused. However, human blood‑stained Datar, P.3 was recovered at the instance of the appellant and since the ocular testimony was corroborated by the recovery evidence only in respect of the appellant, the trial Court proceeded to convict and sentence him alone whereas it rightly gave the benefit of doubt to the others and acquitted them. It was argued by learned counsel that the recovery evidence in the instant case was not reliable so far as the appellant is concerned and it should have been disbelieved. The reasoning is that the appellant was arrested on 2‑8‑1974 but the recovery was effected at his instance on 15‑8‑1974 which was the last date of the remand obtained by the police from the Magistrate so far as appellant was concerned. It was then submitted that two of the public recovery witnesses were no other than the enemies of the appellant, namely. Noor Muhammad P.W.3 complainant and Muhammad Yousuf P.W.5, both being interested witnesses. It was also pointed out that Datar, P.3 remained in the custody of the police from 15‑8‑1974 onwards for a month and half and thereafter, it was sent forward for chemical examination. It was argued that while it remained in the custody of the police for such a long time, the possibility of it being tampered with cannot be ruled out. It was likewise argued that when the recovery was effected it was rainy season, and Datar, P.3 was lying on the roof of the tube‑well of Inayat Ali which was not only an exposed and open place but easily accessible to every one and furthermore the rain could have washed the blood stains on it had there been any. Thus, the case of the defence is that the recovery was belated and unreliable and the said Datar was possibly produced by the interested witnesses and handed over to the police after smearing it with human blood in order to falsely implicate the appellant. We have carefully considered this aspect of the case. But in our view the arguments of learned counsel are without any substance. Whenever there is long standing enmity between two parties, it‑is a usual practice these days that no independent person wishes to come forward as an attesting witness out B of fear that he too might be involved in the blood feud of the others and one or the other party may become inimical towards him. Consequently, only interested persons could come forward as attesting witnesses. In such circumstance it is the responsibility of the Court to examine the testimony of the Investigating Officer in respect of the recovery and if the Court is convicted that the investigation has not been conducted in a dishonest manner, then the Investigating Officer has to be considered as good an attesting witness as any independent person. In the instant case it was argued before us that the trial Judge has made certain remarks about the conduct of the Investigation in the instant case by Muhammad Ashraf, S.I., P. W.12. 'We have gone through the observations of the trial Judge. These are to the effect that the trial Judge was of the view that Muhammad Ashraf, S.I., P.W.12 in the course of his investigation appeared to have favoured the accused party, which means that he did not favour the prosecution side. Consequently, in our view there is nothing on the record to support the observations of the trial Judge in respect of Muhammad Ashraf, S.I., P.W.12. If he had been conducting the investigation dishonestly and had planted human blood‑stained Datar, P.3 on the appellant, he could have as well‑planted recoveries of weapons of offence on the acquitted co‑accused. But it is evident from the record that no recovery could be effected from any of the acquitted co‑accused. Thus, in our view the attestation of recovery of human blood‑stained Datar,P.3 by Muhammad Ashraf, S.I. P.W.12 in the instant case is reliable and was rightly believed by the trial Court. It is indeed correct that the appellant was arrested on 2‑8‑1974 but the recovery was effected on 15‑8‑1974 i.e. the last date of remand. We do not find anything objectionable if the recovery could not be effected earlier as it only depended on the appellant as 'to when he was agreeable to lead to the recovery Again we do not agree with learned counsel that the recovery was affected from an open place which was easily accessible to every one and that it had been lying exposed in the rainy season and, therefore, the blood‑stains would have been washed away. The recovery was effected from the roof of the tube‑well of Inayat Ali, where the appellant had thrown Datar, P.3. It may be lying in the open place accessible to any one, but only the appellant knew where he had thrown it. Furthermore, the injuries caused on the person of the deceased indicate that if Datar P.3 had been used for the commission of crime it must have soaked with blood so much that even if there was rainy season, the blood stains might have not been washed away by rain fall. In any case, to consider that the rain must have washed away the blood stained in such circumstances is merely to proceed in the realm of speculation. It is also on the record as stated by Irshad Ahmad Khan, S.I., P.W.6 that Datar, P:3 remained in the custody of the police for about one and half month when it was sent for chemical examination. It is a practice which must be deprecated and in all such cases it is the duty of the Investigating Agency to send‑forward such weapons of offence for chemical examination as soon as possible In any case, the delay in the despatching of Datar P.3 for Chemical Examination and particularly when there is nothing on the record to show that the investigation had been conducted dishonestly, Datar, P.3 having remained in police custody for one and half month, would not advance the case of defence in any way. In the light of the above discussion, we are of the considered view that the prosecution has been successful in establishing its case as against the appellant beyond tiny shadow of doubt. In the circumstances, the conviction of the appellant under section 302, P.P.C. was quite proper and is accordingly maintained. At this stage, it was argued by learned counsel that if the appellant had committed the crime of murdering the deceased, then it must also be considered that his father had been murdered by the deceased when the appellant was only 4/5 years old, therefore, when he grew up he committed the murder of the deceased in order to avenge the killing of his father by him. Consequently, it was urged that this should be considered as a mitigating circumstance and a case was made out for the awarding of lessor penalty to the appellant. Learned counsel relied upon Ajun Shah v. The State P L D 1967 S C .185 and Shera and others v. The State 1976 P Cr. L J 1028. We agree with, learned counsel. The appellant had murdered the deceased because the deceased was one of those who had been implicated in the murder of his father. The deceased had been convicted and sentenced to death by the trial g Court, but he was given the benefit of doubt and acquitted by the appellant Court. This constitutes a mitigating circumstance in favour of the appellant. The result is that although his conviction is maintained under section 302, P.P.C., the sentence of death awarded to him is altered to that of imprisonment for life. The sentence of fine is maintained. With this modification the appeal is dismissed.

The death sentence awarded to the appellant is not confirmed.

S.A. Death sentence reduced.

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