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Criminal Appeal No. 262 and Murder Reference No. 223 of 1984, heard on 21st February, 1987.

‑‑‑Ss. 302, 307, 148 & 149‑‑Interested and inimical witness‑‑Rule of prudence‑‑Witnesses, father and uterine brother of deceased, inimically disposed towards accused on account of previous murders‑ ‑Alleged motive, a common ground between parties‑‑Motive proved against accused‑‑One eye‑witness injured in occurrence‑‑Nature of injuries showing neither self‑suffered nor self‑inflicted‑‑Accused hailing from same brotherhood, conveniently identifiable at time of occurrence by witness‑‑Witness not getting unconscious on receiving injuries‑‑Number of injuries received by deceased and witness, commensurate with number of accused‑‑Injuries of witness, held, would furnish judicial certainty of his presence at spot at time of occurrence and there was no reason to disbelieve testimonies of witnesses without corroboration in spite of their being interested witnesses.

Niaz v. The State P L D 1960 SC 387 and Nazir and others v. The State P L D 1962 SC 269 ref.

‑‑‑Ss. 302, 307, 148 & 149‑‑Solitary witness‑‑Conviction, held, could be based on solitary statement of injured witness if same ‑rang true.‑ [Witness].

‑‑‑Ss. 302, 307, 148 & 149‑‑Recoveries, corroboration from‑‑Ocular evidence furnished by two eye‑witnesses one of whom injured in occurrence‑‑Evidence ringing true‑‑Conviction of accused, held, could safely be upheld without seeking corroboration from recoveries.

‑‑‑Ss. 302, 307, 148 & 149‑‑Question of sentence‑‑Extenuating circumstance‑‑Two of injuries on person of deceased proving fatal‑‑Fact that nothing on record suggested as to which of accused was liable for fatal injuries being extenuating circumstance, death sentence was altered to one for life imprisonment in circumstances.

Ata Muhammad and 6 others v. The State 1985 S C M R 181 ref.

S.M. Latif Khan Khosa for Appellants.

Mrs. Yasmeen Saigal for the State

Date of hearing: 21st February, 1987.

‑‑Hayat (22/23), Majha (54/55), Moosa (40/42) and Isa (34/35) have been convicted by a learned Additional Sessions Judge, Vehari, vide his judgment, dated 29‑11‑1984 under section 302/34, P.P.C. for causing the murder of Umer Hayat (30) son of Ilyas (P.W.7) and have been sentenced to death and a fine of Rs.4,000 each or in default two years' R.I. It has been directed that half of the fine, if recovered, would be paid as compensation to the heirs of the deceased. They have also been convicted under section 325/34, P.P.C. for causing the injuries to Muhammad Nawaz (P.W.8) and have been sentenced to five years' R.I. and to a fine of Rs.1,000 each or in default one year's R.I. It has further been directed that the fine, if realized, would be paid to Muhammad Nawaz (P.W.8) to the extent of 1/3rd share. The benefit under section 382‑B, Cr.P.C. has also been extended to the convicts so far as their conviction under section 325/34, P.P.C. is concerned. Dost Muhammad alias Dossa (35/36), Abbas (25/26) and Anwar (25/26), who were also tried alongwith the convicts, have been acquitted vide the same judgment.

2. The aforementioned convicts have challenged their convictions and sentences through the criminal appeal viz. Criminal Appeal No. 262 of 1984 while the matter also stands referred to us under section 374, Cr.P.C. seeking confirmation of death sentence awarded to these convicts. Both these matters shall be disposed of by this judgment.

3. The occurrence in this case took place at mid‑night between 9th and 10th of April, 1983 at the Dhari of Ilyas (P.W.7), the first informant, in the area of Chak No. 55/W.B. at a distance of 5 miles from Police Station Saddar Vehari. The occurrence was reported to the police through F.I.R. (Exh.P.C.) at the police station by Ilyas (P.W.7) at 3‑30 a.m. on 10‑4‑1983. The F.I.R. (Exh.P.C.) was recorded by Ghulam Rasool S.I. (P.W.10).

4. Regarding motive, it has been alleged that about three years prior to the present occurrence, Mushtaq, brother of Hayat (appellant) and Abbas (acquitted accused) and also maternal‑cousin of Majha (appellant) was murdered. Sikandar, brother of Nawaz (P.W.8) and nephew (brother's son), of Ilyas (P.W.7) was tried for that murder but was ultimately acquitted. The relatives of the said murdered Mushtaq leased their land located near the lands of the complainant‑party in the present case and took up their abode in Chak No. 93/W.B., District Vehari. They thus harboured grudge and hence the present occurrence.

5. So far as the main occurrence is concerned, it has been alleged that on 9‑4‑1983, the turn of water of Ilyas complainant commenced at 4‑30 p.m. Umer Hayat deceased, his son and Muhammad Nawaz (P.W.8), his nephew, went to irrigate the land. At about mid‑night Ilyas complainant also went to check up whether or not the land was being watered properly. When the complainant reached near his Dhari in the land, he heard the noise at a distance of about one Bigha from the Dhari. He rushed to the place of occurrence. A lantern was burning in front of the Dhari which was hung on the front wall. He saw Abbas (acquitted accused) armed with Toka, Hayat (appellant) armed with hatchet, Majha (appellant) armed with Kassi, Moosa (appellant) armed with hatchet, Isa (appellant) armed with hatchet, Dost Muhammad alias Dossa (acquitted accused) armed with spear and Muhammad Anwer (acquitted accused) armed with gun. These assailants, except Muhammad Anwer, were causing injuries to Umer Hayat deceased and Muhammad Nawaz (P.W.8). Muhammad Anwer, who was armed with gun, was standing on one side. Ilyas complainant raised alarm whereupon Muhammad Anwer, armed with gun, rushed towards him but the complainant was able to hide himself in the nearby wheat field. A shortwhile thereafter, the assailants decamped from the scene of occurrence, after causing injuries to Umer Hayat and Muhammad Nawaz. Ilyas then came near to the injured person. He found that Umer Hayat had already succumbed to the injuries while Muhammad Nawaz was badly injured. On the alarm raised by Ilyas complainant the residents of the village also came there. Ilyas left his brother Isa to guard the dead body of Umer Hayat and himself removed Muhammad Nawaz (P.W.8) in injured condition to the hospital at Vehari. He obtained the medico‑legal report about the injuries of Muhammad Nawaz and, thereafter, lodged the F.I.R. Exh.P.C.

6. The autopsy on the dead body of Umer Hayat deceased was performed on 10‑4‑1983 by Dr. Abdul Ghaffar (P.W.11), the then Medical Officer, D.H Q. Hospital, Vehari. He noticed 17 incised wounds and one abrasion on different parts of the body of the deceased. He opined that the death occurred due to shock, haemorrhage and transaction of spinal cord resulting from injuries Nos. 7 and 8 which were individually sufficient to cause death in the ordinary course of nature. In his opinion all the injuries found on the dead body of the deceased were ante‑mortem. Injuries Nos, 1, 2 and 5 to 8 were grievous while the rest were simple. Injury No. 15 was caused with blunt weapon and the rest were caused with sharp‑edged weapon. Injuries Nos. 7 and 8 which have been opined to be fatal have been described as under:‑

(7) Incised wound 12 c.m. x 5 c.m. on front of neck in upper area. This wound cut all the blood vessels, nerves and muscles of the neck, even skull was separated at level of first cervical vertebra. Spinal cord was completely cut and separated at this level, only some skin posteriorly was present.

(8) Incised wound 10 c.m. x 3 c.m. on front of neck 6 c.m. below to injury No. 7. All blood vessels respiratory passage (trachea), nerves and muscles were cut and divided completely. However, sixth cervical vertebra underneath this injury was cut and not divided completely.

According to the doctor, none of the injuries was penetrating or stab wound. He explained that he has not mentioned the state of food found in the stomach of the deceased. Perhaps he forgot to state so and, therefore, at the trial he was not able to tell if the food found in the stomach of the deceased was digested, semi‑digested or undigested.

7. Dr. Ghulam Rasool (P.W.6) the then Medical Officer D.H.Q. Hospital, Vehari, examined Muhammad Nawaz (P.W.8) on 10‑4‑1983 and observed 20 injuries on his person on different parts of the body. Out of these injuries there were two lacerated wounds, three abrasions and the rest were incised wounds. Injury No. 20 was declared as grievous as a result of X‑Ray examination. It was caused by sharp‑edged weapon. Injuries Nos. 1 and 2 which were simple were opined to have been caused by blunt weapon while the rest were declared to have been caused by sharp‑edged weapon. Injury No. 20 which was found to be grievous one has been described as under:‑

(20) Incised wound 4 c.m. x 2 c.m. x bone cut through and through on the back of right wrist.

8. Abbas (acquitted accused), Hayat and Mjha (appellants) were arrested by P.W. 10 Ghulam Rasool S.I. on I 1‑4‑1983. The remaining accused in this case were arrested by the same police officer on 13th April, 1983.

9. On 11‑4‑1983, the day Abbas, Hayat and Majha were arrested, at the instance of Hayat appellant blood‑stained hatchet (P.7) was recovered from a room of his house vide memo. Exh.P.J. attested by P.W.9 Shahbaz Khan, P.W.10 Ghulam Rasool S.I. and also one Arif who has not been produced. On the same day, Abbas (acquitted accused) led to the recovery of Toka (P.8) from his Kotha vide memo. Exh.P.K. which was attested by the aforementioned witnesses. No recovery could be effected from any other accused in this case. Blood‑stained Kassi (P.5) was, however, recovered from the spot on 10‑4‑1983 vide memo. Exh.P.G. attested by P.W.9 Shahbaz Khan P.W.10 Ghulam Rasool S.I. and Arif (not produced.).

10. As per reports Exhs. P.M. and P.O. of the Chemical Examiner and Serologist respectively, the aforementioned Kassi and Toka were stained with human blood.

11. At the trial, P.W.7 Ilyas, the first informant, and P.W.8 Muhammad Nawaz, the injured witness, testified as eye‑witnesses to furnish the ocular account of the prosecution. They fully supported the prosecution case as disclosed in the F.I.R.

12. The plea of the appellants and that of the acquitted co‑accused was that of denial simpliciter and false involvement. No evidence has, however, been led in defence except Exhs. D.C., D.D. and D.E., the judgments, dated 27‑1‑1979, 29‑1‑1973 and 27‑1‑1979 respectively in previous murder cases between the parties.

13. The learned counsel representing the State supported the judgment under appeal but the learned counsel for the appellants contended:‑

(a) That the motive is always a double‑edged weapon. It may be for causing the murder and may also be for falsely involving the enemies in a murder case. In the present case, both the eye witnesses, namely, P.W. 7, Ilyas and P.W. 8 Nawaz were admittedly inimical towards the appellants on account of the previous murders of Mushtaq and Khan. They had, therefore, the motive to falsely involve the appellants in the murder case.

(b) That the eye‑witnesses being relatives of the deceased and inimically disposed towards the appellants require independent corroboration which is not forthcoming in this case.

(c) That the presence of Ilyas at the time of occurrence is highly doubtful. He has made improvements in his statement so far as the aspect of watering the field is concerned. Had he been on the spot, he would have been shot dead by Muhammad Anwar (acquitted accused).

(d) That the blood‑‑stained Kassi has been shown to have been recovered from the spot, but there is no mention of this Kassi in the F.I.R. or in the supplementary statement of the first informant Ilyas.

(e) Ilyas, first informant, has not mentioned in the F.I.R. that the deceased was dragged out of the door of the Dhari while some part of his body was still lying on the cot inside the Dhari.

(f) The D.S.P. who supervised the investigation came to the conclusion that Nawaz alone had witnessed this occurrence and thus the prosecution version as contained in the F.I.R. wherein Ilyas has also been claimed to be an eye‑witness has been belied.

and

(g) That the eye‑witnesses have been disbelieved to the extent of acquitted accused, therefore, their testimonies cannot be believed so far as the appellants are concerned.

14. This is true that the parties were inimical towards each other on account of previous murders but the fact remains that Mushtaq was murdered who happened to be the brother of Abbas (acquitted accused) and Hayat (appellant). The other appellants are also his close relatives. In such circumstances, obviously the appellants and the acquitted accused had the motive to cause the death of the brother of Sikandar who was liable for the murder of Mushtaq. Moreover, the consideration that the motive is a double‑edged weapon, does not furnish a justification to find that the motive as alleged has not been proved. As a matter of fact, the alleged motive in this case is a common ground between the parties.

15. In case of interested and inimical witnesses, this Court has always insisted upon independent corroboration in order to adhere to well established rule of prudence in the administration of criminal justice. In the present case the two eye‑witnesses i.e. Ilyas and Nawaz are father and a, uterine brother respectively of the deceased and they are also inimically disposed towards the appellants on account of previous murders but we cannot lose sight of the fact that one of the eye‑witnesses, namely, Nawaz is an injured P.W. The nature of his injuries is such that those can neither be self‑suffered nor self‑inflicted. In the opinion of the doctor, these injuries were caused at the same time at which the murder took place. His injuries thus furnish judicial certainty about his presence at the time of occurrence. The appellants hail from his brotherhood. He could conveniently identify the appellants even at night time. His injuries were of such a nature that possibility of his having become unconscious after the receipt of first or second injury is quite remote. In fact, there is no allegation to this effect. In Niaz v. The State P L D 1960 S C 387, it has been held:‑‑

"Whenever interested persons claiming to be eye‑witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons who they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed and he who sets up the plea of substitution has to lay the foundation for it:'

It is noteworthy that the number of injuries received by the deceased and Nawaz (P.W.8) is quite commensurate with the number of accused. In Nazir and others v. The State P L D 1962 S C 269, also it was held that there could not be an inflexible rule that the statement of an interested witness can never be accepted without corroboration. In view of the circumstances of the case, as explained above, there is no reason to disbelieve the testimonies of eye‑witnesses without corroboration in spite of the fact that they are interested witnesses.

16. Ilyas has explained in the F.I.R. as well as in his testimony at the trial that when he proceeded towards the Dhari where the occurrence took place, after hearing the alarm, Muhammad Anwar (acquitted accused) stepped‑forward to fire at him and, therefore, he was able to hide himself in the wheat field. This explanation fully satisfies the objection that had he been at the spot at the time of occurrence he would have been shot dead by Muhammad Anwar. The process of watering has also been explained by him. It has been deposed that originally the deceased and Nawaz had gone to the land to water the fields as per their turn of water which commenced at 4‑30 p.m. and subsequently Ilyas also joined them and shortly before the occurrence he went to the water‑course to see if there was any breach or wastage. The deceased Umer Hayat and Nawaz P.W.8 were sleeping on a cot in the Dhari. Even if by any stretch of imagination it be assumed that Nawaz alone had witnessed the occurrence, the conviction can be based on the solitary statement of an eye‑witness if the same rings true.

17. The conviction of the appellants has not been based on the recovery of blood‑stained Kassi, which has been recovered from the spot. In view of the ocular evidence furnished by Ilyas and Nawaz, conviction of the appellant can safely be upheld without seeking corroboration from the recoveries.

18. It is immaterial that dragging of the deceased out of the door of the Dhari and some part of his body still remaining on the cot has not been mentioned in the F.I.R. This detail has been furnished by Nawaz, the injured P.W., who was certainly present at the time of occurrence and the detail thus furnished does not contradict the testimony of Ilyas.

19. In the light of the above discussion pertaining to the analysis of the contentions raised on behalf of the appellants we have come to the conclusion that these contentions are without any substance. As a matter of fact, the prosecution has been able to bring home the guilt to the, appellants beyond any reasonable doubt. We, therefore, uphold their convictions.

20. Regarding the question of sentence; we have noticed that in the present case injuries Nos. 7 and 8 on the person of Umer Hayat deceased proved to be fatal and there is nothing on the record to suggest that who out of the appellants is liable for these fatal injuries. In Ata Muhammad and 6 others v. The State 1985 S C M R 181, no evidence was available to show that shot fired by the accused, caused the death of the deceased. It was, therefore, held that the accused deserved lesser penalty under section 302; P.P.C. In the present case also, as observed earlier, it could not be ascertained as who out of the appellants was liable for causing the fatal injuries to the deceased. It is thus considered as an extenuating circumstance and we, therefore, alter the sentence of the appellants from death to imprisonment for life under section 302/34, P.P.C. But for the alteration as indicated above, the appeal is dismissed. The death sentence awarded to the appellants is NOT confirmed.

The substantive sentences shall run concurrently.

S.A./I‑18/L Sentence reduced.

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