1. DORAB PATEL, J.--Mushtaq Ahmad was stabbed to death on 13-10-1972 at Lal Bridge in Rawalpindi.
2. The appellant was tried, convicted for that murder and sentenced to death by an Additional Sessions Judge, Rawalpindi. The appellant challenged his conviction in art appeal in the Lahore High Court which was beard with the reference from the Sessions Court. But as the appeal was dismissed and the sentence of death was confirmed by the High Court, the petitioner filed a petition from Jail which was admitted and we have now heard Mr. Inayat Hussain and the learned Assistant Advocate-General on the appeal.
3. The appellant had been married for many years to one Mst. Perveen Akhtar, the uterine sister of the deceased and the real sister of one Muhammad Munsif, who has been examined as an eye- witness. But, according to the said Muhammad Munsif, the marriage was not a happy marriage, because the appellant was a waster and a bad character and there were frequent quarrels between the appellant and his wife. Next, about five months before the murder, the appellant beat his wife, therefore, the deceased warned the appellant to behave. Instead of improving his behaviour, the next 'day, the appellant took away two of his children to the house of his own mother in a village 25 miles from Rawalpindi and never brought them back. Further, according the Muhammad Munsif, about five days before 13-10-1972, his uterine brother, the deceased, was in the shop of a cousin, Muhammad Afzal, in Hathi Chowk, Rawalpindi. The appellant came into the shop of Muhammad Afzal, and he and the deceased had an altercation in which the deceased gave a push to the appellant with the result that the appellant lost his balance, fell on one of show-cases in Muhammad Afzal's shop and received injuries on his face. The appellant was very irate, but other persons including Muhammad Munsif, who ran a shop nearby, arrived and separated the appellant and the deceased. Next, according to Muhammad Afzal, the owner of the shop, "the accused then left saying that he would take revenge of his insult after 3/4 days."
4. On the day of the occurrence, Muhammad Munsif was returning home with the deceased, who bad a bicycle with him. They reached Lai Bridge at about 7-30 p.m. The bridge was well lit. Suddenly, the appellant appeared with a chhuri and said in the words of Muhammad Munsif "that he (the deceased) had ruined his house and then immediately attacked him. He gave repeated blows to the deceased with chhuri. I raised alarm but did not go near because of fear. P. Ws. Habib and Ghani had come on my alarm and witnessed the occurrence. Accused then raised lalkara that if anybody would come near he would also be done to death. Deceased had fallen down. Accused then decamped with chhuri . .... I left P. Ws. Ghani and Habib to watch over the dead body and myself went to P. S. D. Division Rawalpindi and lodged my F. I. R. Exh. P. A. There."
5. Ghulam A.I, an Inspector of the Special Police, recorded Muhammad Munsif's F. I. R. At the police station and then commenced investigations. He arrested the appellant two days later and secured his blood-stained clothes, which were proved by the prosecution to have been stained with human blood. Three days later, this Police Officer recovered, at the appellant's instance, the knife used in the occurrence which was buried near a foot track in the area of Anandpura Gawalmandi, Rawalpindi. This knife too was found to be stained with human blood. Therefore, the appellant was tried in due course and convicted.
6. The appellant's plea was one of total denial, but he did not produce any evidence in his defence.
7. As it was the prosecution case that the marriage between the appellant and his wife had been unsuccessful, Muhammad Munsif's evidence of the occurrence was not fit to be accepted without corroboration, but it was corroborated by the evidence of the two other eye-witnesses and by that of the recoveries, therefore, the Sessions Court was satisfied that the appellant's guilt had been proved, and the High Court agreed with this finding and dismissed the appellant's appeal and confirmed the sentence of death passed against him.
8. Mr. Inayat Hussain took us through the evidence of the eye-witnesses and drew our attention to the discrepencies in the statements of these witnesses. Learned counsel even submitted that the eye- witnesses were never present and had given false evidence, because they were related to the deceased, and, for example, in this connection Habibur Rehman admitted that he was the first cousin of the deceased, but as he stayed less than half a mile from the place of occurrence, we are not able to accept learned counsel's submission that the witness was not present at the occurrence, nor do we see any ground for holding that Abdul Ghani had not witnessed the occurrence. In any case, the question was entirely of the veracity of the witnesses, the more so, as the discrepancies in their statements were of a minor nature and as their evidence was corroborated by the evidence of the recoveries, we cannot interfere with the concurrent findings of the two Courts that the eye-witnesses had proved the occurrence. It is true that the Courts have treated evidence of motive as a corroboratory circumstance, but, with respect, the evidence of motive cannot furnish corroboration of the ocular evidence in the instant case, because of the hostility between the appellant and his wife's family. However, even learned counsel, who has argued the case with great thoroughness, was not able to advance any criticism of the evidence of Ghulam A.I, who conducted the investigations and secured the recovery of the crime weapon and of the blood-stained clothes of the appellant, therefore, no case has been made out for interfering with the concurrent findings of the two Courts that the prosecution had proved the appellant's guilt.
9. Learned counsel, however, submitted that the concurrent finding of the two Courts was based on a misreading of evidence because the eye--witnesses had not specified the number of blows inflicted on the deceased by the appellant, and they had also not given any details of the attack, but, according to the medical evidence, the fatal blows had been caused and the failure of the eye-witness to state that accused has been stabbed to the right side of his chest led to the inference that their evidence was not fit to be believed. We regret our inability to accept this extraordinary submission. Additionally, Muhammad Munsif said that the appellant had repeatedly stabbed the deceased whilst Habibur Rehman said that the appellant "given blows to him (the deceased) on his chest, shoulder, etc." Neither of the two witnesses were cross-examined on these statements, which are fully consistent with the medical evidence. Finally, as to the third witness, it is true that he was not definite whether the weapon used was a chhuri or a knife, but he also said that he had seen the appellant "giving blows to Mushtaq Ahmad, deceased", therefore, we see no inconsistency between the ocular evidence and the medical evidence.
10. Learned counsel then addressed us on the two questions for which this Court had granted leave.
11. These were that two of the eye-witnesses had admitted that the F. I. R. Had been lodged at the place of occurrence after Muhammad Munsif's statement bad been recorded, and that the appellant had injuries on his person, which had not been explained by the prosecution, and this was a circumstance which cast doubt on the prosecution case.
12. Now, both Muhammad Munsif and Ghulam A.I, the Investigation Officer, have categorically stated that the F. I. R. Was recorded at the Police Station, Similarly, Muhammad Akram, a foot constable, who had accompanied the Investigation Officer to the place of occurrence also denied as incorrect the allegation that the F. I. R. Had been recorded by the Investigation Officer at the place of occurrence. As against this evidence, Abdul Ghani said in his cross-examination "Police then recorded statement of P. W. Muhammad Munsif at the spot. (Volunteered that by this statement I mean recovery memos prepared by the Police. P. W. Munsif had signed those papers. I see Exh. P. A.
13. And see that signatures on it are of P. W. Munsif. These signatures were not put by Munsif P. W. In my presence and I do not remember if I stated before C. M. That signatures ion Exh. P. A, were put by Munsif P. W. At the spot (confronted, no a recorded)." Exh. P. A. Is the F. I. R., the contradictory answers given by this witness lend some support to the contention of the appellant that the F. I. R.
14. Had been lodged by Ghulam A.I, S. I. After his arrival at the place of occurrence. Similarly, although the evidence of Habibur Rehman on this question is far from clear, the statement made by him in his cross-examination lends some support to the appellant's contention that the F. I. R. Had been recorded at the place of occurrence. But the Sessions Court, which had the advantage of watching the demeanour of the witnesses, was of the view that Habibur Rehman and Abdul Ghani bad made obliging statements in their cross-examination and had preferred the evidence of the three other eye-witnesses, and the High Court agree with this finding. As this concurrent finding is supported by the evidence of three out of the five witnesses, it cannot reasonably be contended that there is any error of law in this concurrent finding.
15. We now turn to the second question for the examination of which leave was granted. According to Dr. Abdul Jabbar, who examined the appellant, on 15-10-1972, the appellant had six injuries on his person. His teeth were damaged, and there were healed scars on his face, legs, arms and fingers.
16. Learned counsel appeared to think that this evidence could lend some support to a plea of self- defence. But the appellant's explanation of these injuries to him was that he had received them when he fell off a scooter a few days before the occurrence, and Dr. A. Jabbar, who was cross- examined on this suggestion, stated "I cannot exclude the possibility of these injuries being by an accidental fall from a scooter". Additionally, no suggestion was put to cross-examination to the eye-witnesses that the appellant's attack on the deceased had been preceded by a scuffle. In these circumstances, we see no reason to doubt the appellant's explanation on his injuries.
17. Learned counsel then submitted that there were mitigating circumstances. Therefore, the sentence of death was not justified, the more so, as the appellant had four small children, and further, according to the learned counsel. There were other mitigating circumstances, such as, the fight between the appellant and the deceased five days before the occurrence, and the unpleasent relations between him and his wife, which had led to unnecessary intervention in his private life by the deceased. The first of these circumstances cannot help the case of the appellant because the shop incident had taken place five days before the murder and in any case it was a very minor scuffle. As to the second circumstance relied upon by learned counsel, the High Court could, in the exercise of its discretion, have treated it as, a mitigation circumstance and imposed the lesser penalty, but merely because the High Court did not, it cannot be said that the sentence passed was not a legal sentence, therefore, the appeal is dismissed. However, it would be open to the appellant to make a representation to the Government for mercy on this ground.