1. ANWARUL HAQ, J.---The Petitioner Allah Diwaya, along with three others, namely, Sardar Khan, Allah Ditta Mirasi and Allah Ditta Khakh, was tried by the learned Sessions. Judge, Multan. For offences falling under sections 148 and 302, P. P. C., read' with section 149, thereof for committing the murder of khuda Bakhsh deceased. A fifth, accused Khalil was said to be absconding. The learned trial Judge acquitted Sardar Khan, but convicted the remaining three under section 302/34, P. P. C. He sentenced the petitioner Allah Diwaya to death, but awarded the lesser punishment to the two Allah Dittas, along with a fine of Rs. 1,000, in each case. In appeal and confirmation proceedings a Division Bench of the Lahore High Court has acquitted Allah Ditta Khakh but has maintained the convictions and sentences recorded against the petitioner and his co-accused Allah Ditta Mirasi. Allah Diwaya now seeks special leave to appeal against this order. It appears that his co-accused Allah Ditty mirasi has not filed any petition for special leave to appeal.
2. It was alleged by the prosecution that the deceased Khuda Bakhsh was murdered for the reason that two brothers of his wife had killed one Allah Bakhsh; a maternal uncle of the present petitioner.
3. At the time of the occurrence these two brothers, named Mahmood and Allah Jiwaya, were in Jail, and for this reason the petitioner and his companions took revenge from the deceased.
4. The incident occurred on the night between the Ist and the 2nd of June, 1973, in the area of Moza Cel Charagh in Police Station Mailsi in the Multan District. The first information, report was made at 11-45 p. m. On 2-6-73 by Dur Muhammad (P. W. 5), a first cousin of the deceased. According to this witness, he and Allah Ditta (P. W. 6) a brother-in-law of the deceased, were smoking Hukka in the melon field at about 11 p. m. While the deceased was sleeping on a cot eight or ten Karams away from them. It was a dark night and a burning lantern was hanging on a bamboo stick at the head of the cot of the deceased. On hearing the shrieks of the deceased the two witnesses rushed towards hint and they saw all the accused present there. Allah Ditta Mirasi and Sardar Khan were holding the arms of the deceased, whereas the petitioner and Allah Ditta Khakh were causing injuries with their hatchets and Khalil absconder was giving dang blows to the deceased. Rahim Bakhsh (C. W. 1) also reached the spot, and saw the assailants in the light of his torch. On the approach of the witnesses, the culprits ran away from the spot.
5. The petitioner was arrested on 6-6-73, and at his instance a blood-stained hatchet, and a blood- stained Chaddar and Chola were recovered from his house in the presence of witnesses including Ghulam Muhammad (P. W. 7) and S. I. Javed Iqbal (P. W. 8). The chemical examination revealed that all the three articles were stained with human blood.
6. The autopsy of the dead body of. The deceased showed that he had sustained one contused wound on the right side of the forehead and four incised wounds on the right side of the face, on the mouth, on the under-- surface of the chin and on the front of the neck.
7. The petitioner pleaded not guilty at the trial and asserted that he bad` been implicated falsely owing to enmity. He admitted, however, that his maternal --uncle Allah Bakhsh had been murdered by Mahmood and Allah Jiwaya, the brothers of the wife of the deceased.
8. The prosecution placed reliance on the ocular evidence of Dur Muhammad (P. W. 5), Allah Ditta (P.
9. W. 6), as well as the previous statement of Rahim Bakhsh (C. W. 1), brought on the record under section 228 of the Cr. P.C. This witness had been given up by the prosecution on account of having been won over, but was called as a Court-witness and refused to support the prosecution case.
10. However, in cross-examination by the prosecution, he admitted having made a statement during the inquiry proceedings fully implicating the present petitioner and other accused persons, and also asserting that at the relevant time ha was carrying a torch with him and saw the accused in the light of that torch. The prosecution sought corroboration from the presence of motive and. The incriminating recoveries.
11. This evidence has been accepted by both the Courts below. In particular. They have accepted the assertion of the prosecution that a burning lamp was hanging near the head of the deceased, which enabled the witnesses to identify the assailants. While giving benefit of the doubt to the other accused persons, they have found corroboration against the petitioner in the recoveries of blood-stained articles at his instance.
12. In seeking leave to appeal, it is contended on behalf of the petitioner:--
(a) That it was admittedly a dark night and the assailants could not, therefore, have been identified by the witnesses, as the site plan does not show the location of the bamboo stick by which the burning lantern was hanging at the relevant time;
(b) that material discrepancies exist between the statements of the eye-witnesses, who are in any case related inter se and are inimical to the petitioner, and for that reason their evidence needed corroboration; and
(c) no satisfactory corroboration is forthcoming on the record as the recoveries said to have been effected at the instance of the petitioner were false and fabricated.
13. We regret we see no merit in these submissions. Although the witnesses have stated that it was a dark night yet they have asserted that a burning lantern was banging near the cot of the deceased. Even though the location of the lantern is not shown in the site plan, yet a lantern and the bamboo stick by which it was hanging were recovered from the spot by the Investigat--ing Officer on the very first day of his visit. The recovery is satisfactorily, proved by Ghulam Muhammad (P. W. 7), against whom nothing damaging was brought on the record by the defence. We also find that in the statement made by Rahim Bakhsh (C. W. 1) before the committing- Court, it was clearly stated that he was carrying a torch which he lighted to see the assailants. Rahim Bakhsh is not related to the parties, and could not have been cited as a witness if he had not turned up at the spot. The trial Court was, therefore, justified in placing reliance on his earlier statement in preference to the utter denial made by him at the trial. The presence of the lantern as well as the electric torch would show that the assailants were identified by the prosecution witnesses, even though it was a dark night.
14. As to the contention that there are material discrepancies between the statements of the eye- witnesses, the, learned counsel was not able to substantiate the same by referring as to any material portions of their statements.
15. We agree that in the circumstances of the case, the evidence of the eye--witnesses needed corroboration, but the same was forthcoming in the factum of incriminating recoveries at the instance of the petitioner. The weapons of offence as well as the clothes recovered at his instance were found to be stained with human blood. There is no material on the record to come to the finding that these recoveries were falsely planted on the petitioner by the Investigating Officer. The Courts below were right in finding corrobora--tion from these recoveries.
16. As a result, we are satisfied that the petitioner has been rightly convicted and sentenced. The petition is accordingly dismissed.