1. MUHAMMAD HALEEM, ACTG. C. J.-This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore dated 6th of November, 1975, by which Murder Reference No. 92 of 1975, was accepted and Criminal Appeal No. 221 of 1975, was dismissed.
2. According to the prosecution, Ata Muhammad along with his sons, Asghar, Anwar and Arshad, went to -his Dhari, situate in field No. 1 Square No. 67, of Chak No. 145/9-L, Sahiwal, in the evening of 10th of January, 1974. Anwar and Arshad were aged 15 and 10 years respectively. Both of them were students. For a little while they studied and then left to sleep in the adjoining cattle shed. At about mid-night, Ata Muhammad and Asghar were awakened by their shrieks; and as they attempted to go out they found the room locked from outside but they were able to see the appellant, through the window in the intervening wall, causing Kassi blows to Anwar and Arshad in the light of the lantern. They raised an alarm whereupon Abdul Hamid came from his Dhari who also saw the appellant giving Kassi blows to them. At their request, Abdul Hamid unchained the door. In the meantime, the appellant decamped from there after abandoning his Kassi at the spot. Ata Muhammad proceeded to lodge the F. I. R. And on the way be met Naik Muhammad, S. I. Of Police Station Dera Rahim who recorded his statement at 5 a. m. The motive imputed was that six months prior to the present incident, the appellant had caused injuries to Asghar with a Vaholi which dispute was, however, compromised. Thereafter, about 20/25 days before the present incident, Mst.
3. Parveen was caught plucking vegetables from the field of Ata Muhammad who was reprimanded by Anwar and Arshad. The appellant, who was her brother, took it ill and nursed a grievance against them which prompted him to commit these gruesome murders.
4. From the spot blood-stained Kassi was taken into possession. The appellant, who resided in the same village absconded but was arrested on 18 of January, 1974. Deceased Anwar suffered as many as nine incises while Arshad had fourteen such injuries and one abrasions.
5. At the trial the prosecution examined Ata Muhammad (P. W. 8), Asghar (P. W. 9) and Abdul Hamid (P. W. 10) to furnish direct testimony in the case. Evidence was also led to the effect that after the first incident, the appellant was turned out from his house by his father for his unsavoury behaviour.
6. The appellant admitted this fact but pleaded that on the date of incident he was working at Lahore.
7. The trial Court held, while rejecting the submission that the F. I. R. Was belated, that the statement of Ata Muhammad was recorded in Chak No. 185; 9-L at 5 a. m. And as such there' was no delay in lodging the F. I. R. In the facts and circumstances of the case. The trial Court next held that Abdul Hamid had come from his Dhari which was located in close proximity to the Dhari of Ata Muhammad, in. Response to the alarm raised by him and had witnessed the incident. In holding so it repelled the suggestion that his presence was improbable.
8. The trial Court also recorded him as a disinterested witness despite the fact that he was remotely related to Ata Muhammad; and as for the omission in his statement under section 161, Cr. P. C. That he had unchained the door of the room of Ata Muhammad, the trial Court held it to be unintentional which did not adversely reflect on the prosecution case. As for the presence of Ata Muhammad and Asghar, the trial Court held that they were the inmates of the house and their presence could not be doubted. While appraising the evidence of Asghar who was aged 15 years, the trial Court held that he had made certain inconsequential admissions which did not, in any way, affect his veracity. This lapse, the trial Court held, was the result of his indiscretion considering his age and the manner in which he was cross-examined.
9. Lastly, the trial Court held the motive to have been established as even the appellant had admitted the first incident; and as for the second, it stood proved by the testimony of Ata Muhammad and Asghar. In conclusion, the trial Court held the ocular testimony of Ata Muhammad and Asghar to have been duly corroborated by that of Abdul Hamid and the abscondence of the appellant for about 8 days. As for the plea of alibi, the trial Court was of the opinion that it was not established on the record as the appellant failed to substantiate it. The trial Court was further of the view that it was a case of single accused in which the chances of substitution were rare. Therefore, it did not stand to reason that the prosecution witnesses would falsely implicate the appellant and leave the real culprit. Finding no mitigating circumstance to impose the lesser sentence, the trial Court convicted him under section 302, P. P. C. And sentenced him to death.
10. On appeal and reference, the High Court held, on a consideration of the site plan, that there were two rooms in the cattle shed with a common wall which had a window with iron bars fixed in it. Both these rooms had separate exits. The High Court further believed the evidence in regard to the burning of the lantern in the Baithak which was found to be blood stained, where the two deceased had slept. It was thus possible to identify the assailant through the window. The presence of Ata Muhammad and Asghar was held to be natural; and further that Abdul Hamid could have come to witness the incident on hearing the alarm as his Dhari was about one Killa away from the spot. His presence was also held to be established. Accordingly, it upheld the conviction and sentence of the appellant.
11. Leave to appeal was granted to re-examine the evidence as it was contended that the High Court had not taken into consideration that Ata Muhammad and his son were interested witnesses and that Abdul Hamid was a chance witness. These submissions were raised in the High Court but were not considered to be of any substance.
12. In the opinion of the High Court, as the first incident was compromised, Ata Muhammad bad no grudge against the appellant. On the other hand, it was the appellant who bore a grudge against the complainant party not only in regard to the first incident but also in regard to the second as heth held Ata Muhammad and his sons to be responsible for his being turned out of the house by his father. In this context both Ata Muhammad and Asghar were not held to be interested witnesses and, there--fore, they had no reason to falsely substitute him-for the real culprit. As for the arrival of Abdul Hamid at the spot, the High Court held that he was so attracted by their cries because the room, where Ata Muhammad and Asghar slept, was locked and they bad no means to get out to save their kith and kins. Further, the High Court observed that Abdul Hamid, was about one Killa away, watching his cattle and, therefore, it was natural for him to respond to the alarm raised by Ata Muhammad and Asghar; and as he had no enmity against the appellant, he would -not falsely depose against him.
13. We have ourselves examined the evidence and agree with the findings of the High Court.
14. Additionally, we may point out that the two minor deceased would not have slept alone in a room of the cattleshed all by themselves. Accordingly, the presence of Ata Muhammad and his son Asghar who was relatively grown up, cannot be doubted. It is also difficult to believe that they would not have witnessed the incident through the window and identify the real culprit in the light of the lantern and in the wake of the cries being raised by them. Considering the numerous injuries inflicted on them, the incident thus must have lasted for at least some time as it was not possible to cause so many injuries within an interval of a few minutes. In this context Abdul Hamid could have come in time to witness the incident. Therefore, the probability of his presence cannot be doubted in the absence of any thing substantial in his evidence to hold to the contrary. Both the Courts have considered the evidence on correct legal principles. Accordingly, we see no reason to interfere with the appraisal of the evidence.
15. The counsel for the appellant failed to appear and by a short order we treated this appeal as one from jail and notice of it was given to the appellant before hearing it.
16. Finding no substance in the appeal we dismiss it.