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Criminal Appeal No.192 and Murder Reference No.42 of 1984, decided on 17th May, 1987.

---S.302--Witness--Witness having been won over, prosecution, held was not bound to produce him.--[Witness].

---S.302--Witness--Corroboration--Interested witness, held, could be believed without corroboration. -- [Witness ].

P L D 1960 S C 387 ref.

---S.302--Evidence, appreciation of--Motive for crime established- Parties being tense and security proceedings under S.107/151, Cr.P.C. already initiated against parties--Complainant an inmate of the house, a natural witness and her presence in the house at time of incident not open to doubt--F.I.R. lodged promptly by giving a natural account of occurrence--Eye-witness account of F.I.R. amply corroborated by medical evidence as well as by recoveries of crime Chhuries at instance of accused--It was a dastardly act on the part of appellant having trespassed into house of deceased and killing him in brutal manner no mitigating circumstance appearing in the case--Conviction and death sentence confirmed in circumstances.

Karamat Nazir Bhandari for Appellants.

Ehsan Lilla for the State.

Ch.Abdul Wahid for Complainant.

Dates of hearing: 20th and 21st April, 1987.

--The appellants Muhammad Akram aged 2:: years. Muhammad Asghar alias Bagga aged 25 years and Allah Ditta aged 27 years, all brothers inter se, and sons of Ahmed Din resident of Nai Abadi Bhaddey, a village falling within the jurisdiction of Police Station Kamoki district Gujranwala were tried by learned Additional Sessions Judge, Gujranwala on charges under section 307 read with section 34 of the Pakistan Penal Code for having caused the murder of one Suba son of Bahadar and under section 307/34 of the Pakistan Penal Code for making a murderous assault on Muhammad Boota son of Murad and Mst. Hajran Bibi P.W.8, widow of deceased Subs. It was further alleged that all the accused persons had also trespassed into the house of Suba deceased to commit his murder and, hence, they were also tried on a charge under section 449 of Pakistan Penal Code.

2. The learned Additional Sessions Judge, Gujranwala, vide his judgment dated 18th February, 1984 found the appellants guilty on the charge under section 307 and 449 read with section 34 of the Pakistan Penal Code. Allah Ditta, a brother of the appellants, was found innocent and was, therefore, acquitted of the aforesaid charges. On the charge under section 302/34 of the Pakistan Penal Code, each of the appellants, namely, Muhammad Akram, Muhammad Yaqoob and Muhammad Asghar were sentenced to death, and to pay a fine of Rs.5,000 (Rs. five thousand only) each, or in default of the payment of fine, to suffer rigorous imprisonment for a period of two years each. On the charge under section 307 of the Pakistan Penal Code all the three appellants were acquitted. On the charge under section 449 of the Pakistan Penal Code, each of the appellants were sentenced to undergo life imprisonment and to pay a fine of Rs.5,000 (Rs. five thousand only) each, or in default of the payment of fine, to suffer rigorous imprisonment for a term of two years each. It was further directed that the amount of fine, if recovered, shall be paid to the heirs of the deceased as compensation under section 544-A, Criminal Procedure Code.

3. Aggrieved by their convictions and sentences, the appellants have preferred this appeal and the case has also been referred to us under section 374 Criminal Procedure Code. The complainant Mst. Hajran Bibi has also preferred a revision petition (Criminal Revision No.742/84) seeking enhancement of fine of compensation. This judgment shall dispose of the appeal, the reference as well as the Revision Petition.

4. The unfortunate occurrence resulting into the death of Subs, deceased and injuries on the person of Mst. Hajran Bibi and Boota took place at 4.30 p.m. on 2nd October, 1982 in the house of the deceased in village Nai Abadi Bhaddey situated at a distance of 5 miles from Police Station Kamoki.

5. Mat.Hajran Bibi P.W.8 (widow of deceased Subs) whale proceeding to the Police Station Kamoki came across Nazir Ahmad, ASI P.W.13 at Eminabad More at 6.00 p.m. The said ASI recorded the statement of Mst.Hajran Ex.P.B. and after recording it sent the same to the Police Station Kamoki for the registration of a case: Accordingly, on the basis of the statement of Mst.Hajran Ex.P.B. formal FIR Ex.P.B./I was drawn at the police station at 6.30 p.m. by Muhammad Akbar, Muharrir-ASI Police Station Kamoki.

6. The prosecution case as disclosed in the FIR by Mst. Hajran P.W.8, was that she alongwith her deceased husband hart settled in village Bhaddey a year before the occurrence, and her husband was cultivating the land of one Ch. Khalil. According to the complainant, on the day next to Eid-ul-Fitr in 1981, her daughter Mst. Rukhsana was abducted by appellant Muhammad Yaqoob, and due to the intervention of Punchayat 2/3 days after the abduction Mst.Rukhsana was restored to her parents. After her restoration, the complainant and her deceased husband got their daughter Rukhsana married in village Chee within the jurisdiction of Police Station Naushehra Virkan. It was further stated that since the complainant and her husband had to pass for proceeding to their land near the house of appellant Muhammad Yaqoob, therefore, the appellant used to tease the complainant. A month before the occurrence the preventive proceedings .under section i07/151 Criminal Procedure Code were initiated against the appellant. The said case (preventive proceedings) was fixed for hearing on the day of occurrence and after having appeared in the Court, Suba deceased returned to the house accompanied by Mehram (paternal-uncle of the complainant), Shortly after the return of the complainant, the appellants Muhammad Ygiqoob, Nluhammad Akram and Muhammad Asghar alias Bagga armed with Chhuris entered the house of the complainant after breaking open the door of the court-yard. The elder brother of the appellants could not be named by the complainant in the FIR, but according to her, he was also standing outside in the door and on his exhortation, Muhammad Yaqoob appellant inflicted Chhuri blow on the abdomen of Suba deceased. This appellant inflicted another Chhuri blow on the left elbow of Suba deceased. Muhammad Akram appellant inflicted a Chhuri blow oar the ribs of the deceased, while Muhammad Asghar alias Bagga appellant inflicted a Chhuri blow on the chest of the deceased. On receipt of these injuries, Subs. deceased fell down. On hue and cry raised by the complainant, the neighbourers Charagh alias Munshi and Muhammad Boota reached the scene of occurrence and tried to intervene, hereupon, appellant Muhammad Yaqoob inflicted a Chhuri blow on the waist of Muhammad Boota. In the meanwhile other villagers also collected, but all the appellants raising Lalkaras escaped from the scene of occurrence. According to the complainant, her husband was murdered by the appellant at the instigation of their paternal cousin Baboo Muhammad 'Sharif. According to the complainant when she attempted to run outside the house, the elder brother of appellant Muhammad Yaqoob standing in the door inflicted a Chhuri blow on the head of the complainant. Subs. deceased who was lying unconscious was removed to the hospital at Gujranwala, where he succumbed to his injuries on 5th October, 1982.

7. Dr.Muhammad Akhtar Hussain Chatta, P.W.11, Senior Medical Officer, Civil Hospital, Gujranwala examined Suba deceased when he was still alive, and noticed the following injuries on his person:-

(1) A stab wound 6 c.m. x 3 c.m. not probed, just above right nipple.

(2) A stub wound 3 c.m. x 1 c.m. not probed, just above right epigastrium.

(3) A stab wound 6 c.m. x 3 c.m., omentum was coming out of the wound, in the left chest and in the left 11th rib.

(4) An incised wound 1 c.m. x 1 c.m. just below left elbow joint (skin deep).

After the death of Suba deceased, the same doctor on 6th October, 1982 conducted post-mortem examination on the dead body of Suba deceased, and the same injuries as referred to above were observed. According to the post-mortem report, right lung of the deceased Suba was punctured in the middle zone. In the abdomen disphgram was punctured. Right lobe of the liver and the left kidney was also punctured. The death in the opinion of the doctor took place on account of excessive haemorrhage and shock and peritonitis. Injuries Nos.1, 2 and 3 were fatal and were sufficient to cause death in the ordinary course of nature. All the injuries had been caused with sharp-edged weapon.

8. On 2nd October, 1982, the same doctor conducted medico-legal examination of Muhammad Boota (an injured eye-witness, not produced) and the following injury was noticed:-

A stab wound 2 c.m. x 1 c.m. not probed, in the centre of both the scapulae.

At 7.30 p. m. on the same day, on the application of Nazir Ahmed, ASI, Mst.Hajran complainant was also medically examined by the said doctor, and the following injury was noticed, which was declared to be .simple in nature: -

A crescent shaped incised wound 3 c. m. x 2 c. m. scalp deep on the left frontal region of skull just above the hair margin.

9. On the day of occurrence, Muhammad Akram appellant appeared before P.W.5 Dr. Javed Iqbal, Medical Officer of Rural Health Centre, Eminabad. The said doctor medically examined Muhammad Akram, appellant and the following injuries were noticed on his person:-

(1) An incised wound superficial 11 c.m. x I c.m. wide, toppering at both ends,, vertical on outer aspect of left upper arm:

(2) An incised wound 4 c. m. x J c. m. across medical border of left hand just below root of thumb lying transversely, depth not probed, because the injury was superficial.

(3) An incised wound about 1.5 c.m. long just distal to first interphalangeal joint of left index finger. The wound was cutting and separating the rest of the finger completely,

(4) A contusion 2 c.m. x 1 c.m. on outer border of left forearm on its middle.

In the opinion of the doctor injury No.3 'was grievous, while the rest were simple. Injuries Nos.1, 2 and 3 were caused by sharp-edged weapon while injury No.4 was caused by blunt weapon.

10. SHO Police Station Kamoki moved an application Ex.P.D. before Dr.Javed Iqbal to seek his opinion about the nature of the injuries. The doctor opined that injuries Nos.1, 2 and 3 appeared to be inflicted by injured person himself.

11. On 11th October, 1.982 Ghulam Sarwar, SHO Police Station Kamoki PW.12 arrested all the appellants. On 24th October, 1982 appellant Muhammad Asghar while in police custody led to the recovery of blood-stained Chhuri P.1 from his house which was taken into possession vide Memo. Ex.P.E. attested by Muhammad Malik PW-6 and Murad (not produced) besides the Sub-Inspector Muhammad Sarwar PW-12. On the same day appellant Muhammad Akram while in police custody got recovered a blood-stained Chhuri from the cattle-shed of his house, the same was taken into possession vide Memo.Ex.P.G. attested by Nazir Ahmed ASI PW-13, Muhammad Malik PW-6 and Murad (not produced). Appellant Muhammad Yaqoob, while in police custody also got recovered a blood-stained Chhuri from a room of the house of Muhammad Akram appellant, which was under construction. The said Chhuri buried in the room, and the same was taken into possession vide Memo Ex.P.H. attested by Muhammad Hussain ASI PW-9, Muhammad Malik PW-6 and Murad (not produced). These weapons of offence were sent- to the Chemical Examiner, who vide his report Ex.PX opined that these weapons were stained with blood. The Serologist, vide his report EX.P.Z opined that the said weapons were stained with human blood.

12. At the trial, the prosecution relied upon the ocular testimony of the complainant Mst. Hajran Bibi (widow of Suba deceased) who appeared as PW-8 and one Muhammad Ashiq PW-10 who was not named in the FIR. The other eye-witnesses named in the FIR namely, Charagh alias Munshi, Muhammad Boota (an injured eye-witness) and Mehram (a paternal-uncle of the complainant) were given up as having been won over. In addition to the above-mentioned ocular testimony, the prosecution also relied upon the recoveries and the evidence as to the motive.

13. All the appellants except Muhammad Akram denied the charge. Muhammad Akram appellant in his statement under section 342 Criminal Procedure Code made the following statement:-

"Prior to my shifting to Nai Abadi Bhaddey, I alongwith my father and brother was living in town Eminabad. My mother was murdered by one Noshair Khalid of Eminabad. Out of the fear of the said Noshair Khalid and his relatives, we had shifted to Nai Abadi Bhaddey. The relatives of the said Noshair Khalid had been trying to put pressure on us to effect a compromise in that case and they had joined Suba deceased, Boota and Munshi PWs in the campaign, as a result of which the relations between our family and that of Suba became strained, and proceedings under section 107/151, Cr.P.C. were initiated against Suba and his party men. On the day of occurrence, I was purchasing vegetable from a shop nearby the house of Suba deceased when I was attacked by Suba, Boota and Munshi. In the meanwhile, many persons gathered at the spot and in the confusion I received injuries on my person for which I was examined later on. Suba and Boota also received injuries. Mst. Hajran Bibi had suffered the injuries in order to show her presence at the spot. We have been involved in this case after consultations with our enemies of Eminabad town who had been made available at the time of writing of the FIR."

14. We have carefully perused the evidence on the record, and the learned counsel for the appellant and the State have also been heard at length. The learned counsel for the appellant raised the following contentions:-

(a) PW-10 Muhammad Ashiq not having been named in the FIR is a made up witness, hence the testimony is of no avail to the prosecution.

(b) Mst. Hajran Bibi PW-8 is not reliable witness, and it will not be safe to rely upon her statement without corroboration from independent source which is lacking in this case.

(c) Boota (injured witness) and Mehram have not been produced by the prosecution and, therefore, an adverse inference should be drawn to the effect that had they appeared in the witness-box, they would not have supported the prosecution. Furthermore, their non-appearance demonstrates that they were the assailants as alleged by Muhammad Akram appellant in his statement under section 342, Cr.P.C.

(d) That the recoveries of blood-stained Chhuries is fake and doubtful and hence cannot be acted upon as corroborative evidence.

(e) That no proof was tendered in evidence by the prosecution to establish the motive, i.e. the abduction of Rukhsana.

(f) Even if the motive is believed, the boot would be on the other leg, inasmuch as, it would be the complainant side who would no aggrieved and would wait for a .r opportunity to falsely involve the appellants.

Lastly, it was contended that the defence version is more probable.

15. The learned counsel for the appellants brought the testimony of Muhammad Sharif PW-10 under scathing criticism, drew our attention to the fact that he was not even named by Mst. Hajran in examination -in-chief. It was next contended by the learned counsel for the appellants that even if the presence of Muhammad Ashiq is believed, he is partison witness and, therefore, it will not be safe to, rely upon his statement. It was also contended that Muhammad Ashiq PW-10 is the real brother of the complainant Mst. Hajran and, therefore, he is a made up witness. The record of the case indicates that Muhammad Ashiq PW 10 was one of the parties to the proceedings under section 107 151 of the Criminal Procedure Code. The appellants in their statements under section 342, Cr.P.C., also admitted that Muhammad Ashiq was a party to the aforesaid proceedings Muhammad Ashiq PW 10 was cross-examined at length and he explained that he had to attend the Court in connection with the aforesaid proceedings on the date of occurrence and after attending the Court, he accompanied Suba: deceased to village Nai Abadi Bhaddey. He further clarified that on each date of hearing, he used to return to the village of Suba instead of proceeding to his own village, The witness is admittedly a resident of Mauza Nawan Pind and from his village Gujranwala City is at a distance of 11 miles, while Nai Abadi Bhaddey is at a distance of 12 miles. Thus, the village of Muhammad Ashiq PW 10 is at a distance of 23 miles from Gujranwala City. The witness further explained that after attending the Court, he decided to go to the house of his sister Mst.Hajran in village Nai.A.badi Bhaddey, because be apprehended that some quarrel may not take place. The record also shows that Muhammad Sharif was one of the person who had taken Suba, deceased in an injured condition to the Hospital at Gujranwala. Mst.Hajran also explained that when she raised hue and cry, besides Munshi and Boota (given up witnesses) her brother has also reached the scene of occurrence. In ultimate analysis two important facts stand established on the record, the first being, that Muhammad Ashiq PW 10 was a party to the proceedings under section 107/151 Cr.P.C., pending between the complainant side and the appellant over the abduction of the daughter of the complainant and the deceased, Mst.Rukhsana. Secondly, that on the day of occurrence Muhammad Ashiq was one of the persons who had taken the injured Suba to hospital for providing medical aid, but the next crucial question is whether these two facts would make us to believe that was also an eye-witness and had seen the occurrence, particular when the first informant Mst. Hajran omitted to mention him eye-witness in the FIR. Such omission on the part of the complainant when she named the other neighbourers who had reached the scene of occurrence does not inspire confidence to believe that Muhammad Ashiq PW 10 was a witness of the occurrence. However, we are prepared to believe that he reached 'the village and had taken the deceased to the hospital, but in our view, he had reached after the occurrence and not when it took place. We are not prepared believe that on account of inadvertence or some error of judgment Mst. Hajran would have omitted to name her real brother Muhammad Ashiq PW 10 in the FIR as a witness to the occurrence if he had been present at the scene of occurrence. In this view of the matter and for the safe administration of justice, we will discard his testimony with regard to the account of the occurrence, but we will believe him with regard to the motive sought to be proved by prosecution ill this case.

16. Adverting to the motive, the prosecution case was that 2 at 2-1/2 months before the occurrence, Mat. Rukhsana (daughter on the complainant) was abducted by Muhammad Yaqoob, appellant and through intervention of Punchayat 2/3 days thereafter, Mst. Rukhsana was restored to the complainant and Suba deceased. After the restoration of Mst. Rukhsana, the complainant side was teased by the appellant because house of the deceased was near the house of the appellant and the deceased had to pass from near the house of the appellant, for proceeding to his own house. Such tense situation had led the police to take the preventive proceedings under section 107/151, Cr.P.C., against both the parties. The defence also admits the pendency of these proceedings and, therefore, we are of the view that there is no doubt that the parties were tense against each other. It was argued by the learned counsel for the appellants that the motive lay on the side of the complainant to involve the appellants because their daughter had been abducted and, hence the appellants had no motive to commit the crime. It was further contended that no other evidence was brought on the record to substantiate the abduction of Mst. Rukhsana. It may be mentioned that after the restoration of Mst. Rukhsana, she was married and was living with her husband in another village. Obviously, Mst. Rukhsana could not have been produced by her parents in the witness box because this would have brought stigma to her and would have put her marriage in jeopardy. The pendency of the proceedings under section 107/151, Cr.P.C., between the parties goes a long way to establish that the appellant's side must have harassed, teased and taunted the complainant side because otherwise the parents of an abducted girl after restoration and subsequent marriage of their daughter would prefer to cl6se the chapter rather than to do some mischief. Accordingly, we have no doubt in our mind that the motive as sought to be established by the prosecution has been proved beyond any shadow of doubt. The next question falling for determination is that having discarded the testimony of Muhammad Ashiq PW 10 with regard to the occurrence can the sole testimony of Mst. Hajran be relied upon to believe the statement of the prosecution case. The answer to this question is that there is no dearth of authorities to lay down that the solitary testimony of an eye-witness can be believed for sustaining the conviction in a murder case, but it will depend upon the inherent worth of such testimony. In the facts and circumstances of this case, Mst. Hajran complainant is an inmate of the house where the occurrence took place. Her presence in her house is not open to doubt and thus she is a natural witness and, therefore, her testimoney cannot be brushed aside. The bare perusal of the FIR Ex. PB/I lodged by her, manifests simplicity of a truthful witness, inasmuch as, she frankly stated that a brother of the appellants was standing in the door whose name she does not remember. In our view, ii was a prompt FIR and had deliberations taken place to rope in the appellants falsely, the name of the brother of the appellant standing near the door of the house would have been mentioned in the F.I. R. She has rendered a. natural account of the occurrence. She stated that as soon as the appellants armed with Chhuris entered her house. Suba deceased out of fear ran to a room and chained it from inside. It was stated by her that the said door was broken with Moongli and then the attack was launched. According to her, appellant Yaqoob inflicted two Chhuris blows to Suba deceased one on his abdomen and the other on his left elbow. Then Muhammad Akram appellant is alleged to have caused inflicted a Chhuri blow to Suba deceased on the left side of his ribs and lastly Muhammad Asghar appellant gave Chhuri blow on tile right side of chest of Suba deceased. In this manner, in all, Subs, deceased received four Chhuris blows. The seat of these injuries are amply corroborated by the medical evidence.

It was contended that it was one man show, and all these injuries could have been caused by a single person and since it is not known that which of the appellants had participated in the attack, therefore, a doubt is caused on the prosecution case. The contention is devoid of force, inasmuch as, it could not have been one man attack otherwise Suba deceased might not have run to a room of his house for safety. The breaking of the door also negates such assertions, because hue and cry raised by Mst. Hajran had attracted the neighbourers who did not enter the witness-box but they would have easily overpowered if the assailant was only one person. On the other hand, the prosecution case is that not only Suba deceased but PW Boots also received an injury. No doubt Boota has not entered the witness-box, but the overwhelming evidence to prove that Boota was also injured in the occurrence and, therefore, it was a concerted attack by more than one person, and the manner of attack as narrated inspires confidence and rings true.

17. Now we will deal with the question of non-appearance of Charagh alias Munshi and Boota named in the FIR as eye-witnesses in the trial. We should draw an adverse inference to the prosecution on account of its failure to produce these witnesses. The contention obviously has no substance, inasmuch as, the witnesses had been won over and, therefore, the prosecution was not bound to produce them, that is why the defence did not choose to produce them as defence witnesses. Furthermore, we cannot be unmindful of the lack of the civic sense which is being eroded on account of the failure of the machinery to keep law and order detering the witnesses to come forward, therefore, we have no hesitation to repel this contention.

18. We are conscious of the fact that what to talk of solitary eye-witness, even an interested witness can be believed without, corroboration as laid down by the Supreme Court of Pakistan in Nia z Ali's case reported as P L D 1960 S C 387. However, in this case even corroborative evidence is also available because all the appellant had led to the recovery of blood-stained Chnurris which were sent to the Chemical Examiner and the Serologist, and they were opined to be stained with human blood. The learned counsel wanted us not to believe these recoveries on account of certain contradictions and discrepancies in the statements of the recovery witnesses. We have considered this aspect of the case. The recoveries were attested by Murad (not produced) having been won over by the defence and by Muhammad Malik P.W.6, in addition thereto, three different police officers. According to the testimony of Muhammad Malik P.W.6, he alongwith Murad had accompanied the police to More Titlay Wali in a Suzuki van. According to the witnesses from there the police officers took each of the appellants turn by turn to the place of recovery on foot. Asghar appellant led to the recovery of blood-stained Chhuri P.I from under the cowdung cakes near the southern wall of the courtyard of the house. Thereafter, appellant Muhammad Akram got recovered blood-stained Chhuri P.3, from underneath the cowdung cakes and woods lying in the courtyard in the house of Muhammad Asghar appellant, and last of all Muhammad Yaqoob appellant got blood-stained Chhuri P.4, recovered from the house of Muhammad Asghar appellant, which was under construction at that time. There discrepancies referred to by the learned counsel for the appellants was that Muhammad Malik, P.W.6, had used the word "courtyard of the house", but in cross-examination be stated that the recovery was made from the rooms of the aforesaid house. The evidence further reveals that each of these houses belonging to the appellants consists of only one room and, therefore, it is clear that the witness treated the room as house. The other discrepancy pointed out was that according to Muhammad Hussain AN P.W.9, a witness to the recovery of Chhuri at the instance of Muhammad Yaqoob appellant, stated that they did not stop at More Titlay Wali but went direct to Nai Abadi Bhaddey to effect the recovery. He also denied that each of the appellants after recovery brought back to More Titlay Wali and then the other appellant was taken to the village turn by turn. On the contrary, according to Muharnma6 Malik P.W.6, each of the appellant was brought at More Titlay Wali and from there turn by turn each of the appellant was taken to the village, but in our view these discrepancies do not demolish the recoveries, inasmuch as, Ghulam Sarwar P.WA2; fully corroborated Muhammad Malik P.W.6 in this behalf. The statements of both these witnesses leaves no room for doubt that the manner of recovery rings true and, therefore, the recoveries in our view are genuine and provide ample corroboration to the testimony of Mst.Hajran. Furthermore, Muhammad Malik P.W.6, is neither related nor is interested witness and does not belong to the village of the appellant, but he hails from village Nawan Pind a suburb of Kila Didar Singh Town and, therefore, we have no doubt that the recovery witness Muhammad Malik P.W.6, is a truthful witness and had an axe of his own to grind

19. After anxious considerations, we are of the view that the prosecution has brought home guilt to the appellants beyond any shadow of doubt. This was a dastardly act on the part of the appellants to have trespassed into the house of the deceased and to have killed him in a brutal manner. Each of the appellants had inflicted fatal injury to the deceased Suba and, hence, there are no mitigating circumstances in this case. They had all acted in furtherance of their common intention to kill the deceased. Accordingly, the convictions and sentences under Section 302 of the Pakistan Penal Code as awarded to the appellants by the trial Court is maintained. Their conviction under Section 449 of the Pakistan Penal Code is also maintained. The appeal preferred by the appellants is hereby rejected. The death sentence awarded to each of the appellants is hereby confirmed. The reference is thus answered accordingly.

S.G.D./M-390/L Appeal dismissed.

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