ASLAM RIAZ HUSSAIN, J.-This appeal by Mst. Habib-un-Nisa alias Mst. Bivi is directed against the judgment of a Division Bench of the Lahore High Court dated 24-11-1974 whereby the conviction and sentence recorded against respondent, Zafar Iqbal under sections 302/457, P. P. C. By the learned Sessions Judge Jhelum were set aside, and he was acquitted on both the counts.
2.The incident resulting in the death of the appellant's husband, Mir Muhammad, took place at about 11.45 p.m during the night between 8th and 9th November 1971 in the courtyard of her own house in village Domeli in District Jhelum.
3. The facts of the prosecution case as deposed by Mst. Bivi appellant are that on the night of the occurrence her husband Mir Muhammad, deceased, and she were sleeping in their Haveli along with their children. At about midnight someone knocked at the door. Mir Muhammad, deceased, called out asking as to who was there but there was no response. After a short while there was another knock at the door. Mir Muhammad asked his wife to give him a stick. She handed over a stick to him, and as he advanced towards the door, she cautioned him not to open it. But Mir Muhammad opened the door and went out. She too opened the shutter of a window in the same room to see who it was. In the light of the electric bulb in the courtyard of the house she saw Zafar Iqbal/respondent standing there. Mir Muhammad addressed the intruder asking why had he come to their house at that hour. The accused retreated. Mir Muhammad followed him whereupon Zafar Iqbal fired at him, hitting him between the chest and the abdomen, as a result of which he fell down. The accused thereupon ran out to the Deorhi and went out into the street. Mst. Bivi, appellant who had also come out in the meanwhile, ran after him, crying and raising alarm. But Zafar Iqbal ran out on the street and escaped. Mst. Nur Begum, P. W. Who lived in the house opposite to that of the deceased had woken up on hearing the report of gun fire and came out of her house. She saw Zafar Iqbal, respondent, coming out of the house of the deceased with a pistol in his hand and running on the street. She could see him in the light of the bulb in the street. She also saw Mst. Bivi running after him crying that he had killed her husband. She (Mst. Nur Begum) also raised an alarm.
3-A. After Zafar 1qbal had made good his escape, both the women returned to the courtyard of the house of the deceased. Other persons living nearby also turned up, one of whom was Karamat Hussain, P. W. 18 who had also seen the assailant running away with a pistol in his hand, also came there. Shall P. W. 8, a. Nephew of the deceased also reached shortly after--wards. Mst. Bivi, who was wailing and crying, told Shafi to hurry up and bring Sajawal, P. W. Another nephew of the deceased from his house. Shall then went and brought Sajawal within a short time. Mst. Bivi narrated the incident to him and asked him to lodge the report with the police. Sajawal thereupon went to Police Station, Domeli and lodged the F.
1. R. Exh. P. A. At 1-30 a.m., in which he narrated the version of the incident as told to him by Mst. Bivi as well as the motive for the offence. He did not, however, mention the name of Karamat Hussain P. W. As having come to and being present at the spot.
4. The motive for the occurrence as stated in the F. I. R. Is that some months prior to the incident Zafar Iqbal (respondent) had abducted Mst. Farzand Begum daughter `of Alaf Din and wife of Muhammad Siddique. But after a few days she was got restored to her family on the intervention of Mir Muhammad, deceased. The respondent, however, used to come to Mir Muhammad and demanded that he should arrange the divorce of Mst. Farzand Begum from her husband and get her returned to him. Mir Muhammad declined to help him in this matter. It is alleged that Zafar Iqbal had harboured a grievance against the deceased on account of the part played by him in the restoration of Mst. Farzand Begum.
5. The F. I. R. Was recorded by Muhammad Anwar Khan S. H. O., P. W.
21. After recording the same, he went to the spot and found the dead body of Mir Muhammad lying in a pool of blood in the courtyard of his house. He collected some blood-stained earth from the spot and also sent the dead body for post-mortem examination.
6. During the post-mortem the doctor found two fire-arm injuries on the body of the deceased, i.e. a fire-arm injury on the chest and an exit wound made by the same shot on the right side of the back of the deceased.
7. The accused was arrested on 10-11-1971. While in custody with the police the Investigating Officer recovered the revolver and 3 live cartridges. But since no empty shall had been recovered from the spot the revolver was not sent to the Ballistic Expert.
8. At the trial the prosecution relied mainly on the ocular testimony of Mst. Bivi, P. W. 16 (ii) the Wajtakkar evidence of Mst. Nur Begum, P. W. 15 and Karamat Hussain, (iii) the evidence of motive as given by Mst. Hashman, P. W. 12 and Mst. Bivi, P. W. 16 and (iv) the medical evidence. The F. I. R. Was proved through Sajawal P. W. 17.
9. The accused denied his guilt and pleaded that he had been falsely involved in the case by the S. H. O. After taking bribe from the complainant party.
10. The learned trial Court did not believe the evidence of motive. It also discarded the testimony of Karamat Hussain, P, W. 18 and based the conviction on the testimony of Mst. Nur Begum and Mst.
Bivi, read with the statement of Sajawal, and the medical evidence. The learned trial Court convicted Zafar 1qbal respondent under section 302, P. P. C. And sentenced him to death. It also convicted the respondent under section 457, P. P. C. And sentenced him to five years' R. I.
11. War Iqbal filed an appeal before the High Court which was accepted vide the impugned judgment and he was acquitted of both the charges.
12. Feeling aggrieved Mst. Bivi the widow of the deceased filed a petition for leave which was granted by this Court on 19-4-1975 for examining the evidence for the purpose of satisfying itself whether the evidence of natural eye-witnesses who had no motive for falsely implicating the accused in this case, had been rightly rejected by the High Court in accordance with the sound judicial principles governing the appreciation of evidence in such cases.
13. We have heard the learned counsel for the appellant and the respondent as well as the learned Additional Advocate-General for the State; and have also gone through the entire record with their help. The counsel for the appellant vehemently urged that the learned High Court had erred in disbelieving Mst. Bivi the widow of the deceased who was the most natural eye-witness as she resided in the same house, and Mst. Nur Begum who too was a natural and disinterested witness.
He submitted that the view taken by the High Court that the statements of the two witnesses were based on their imagination rather than on facts witnessed by these two women is entirely hypothetical and wholly unjustified; that the learned Judges failed to consider that none of the witnesses had any motive whatsoever to falsely name the respondent as the murderer; that the F. I.
R. Was lodged within a very short time and it not only contained the details of the occurrence but also contained the motive for the murder and lastly that the conclusions arrived at by the learned Judges from the evidence on the record, are not such as could reasonably have been arrived at.
14. The learned counsel for the respondent submitted, on the other hand, that although the two ladies are natural witnesses yet their testimony is not such as could not be relied without any independent corroboration. He pointed out some contradictions, in their earlier statements and their statements at the trial to show that they were prone to exaggeration and improvement. He also submitted that they had not told the name of the culprit to Shafi 1 P. W. 8 and as such it could be assumed that they had not seen or identified him.
15. We have considered these contentions in the light of the evidence on the record keeping in view the reasons given by the High Court for not relying on it and disbelieving the two women. The High Court has recorded its reasons in paragraph 7 of the impugned judgment. Briefly stated these are
(i) that the prosecution has not been able to prove the motive asserted by it and that this fact reflects adversely on the entire case;
(ii) that the statement of Shafi, P. W. 8 shows that Mst. Bivi had not informed him as to who was the culprit;
(iii) that if she knew the name of the culprit then why did she not ask Shafi, P. W. To lodge the report instead of asking him to go and bring Sajjawal, P. W. ; and
(iv) that from the statement of Mst. Nur Begum P. W. 15 it is clear that although Karamat Hussain is stated to have been present at the spot when Sajawal came, yet he did not tell Sajawal as to what he had seen.
16. We have given serious consideration to the aforementioned observa--tion of the High Court, but with utmost respect to the learned Judges of the High Court, we are afraid we cannot subscribe to them. We do not fin any weight in the arguments advanced by the counsel for the respondent also.
It is noteworthy that this is a case where only one person has bee named as the assailant, Mst. Bivi the wife of the deceased is the most natural person to have seen the incident. She was sleeping in her own mouse with her family and woke up when the intruder knocked at the door. She ha given a most graphic description of what followed and what she has stat not only rings true but is corroborated by the nature and description of the injuries found on the dead body of the deceased. Due to natural curiosity coupled with apprehension, she had opened a window in the room to se who was calling out her husband at the dead of night and saw Zaf Iqbal in the light of the electric bulb, whom she recognized as she knew him previously. It was also natural for her to run after him after he had fired at her husband shouting; crying and raising alarm as she Iran after him. She had no reason whatsoever to name the respondent as the murderer of her husband unless he was indeed the person whom she saw committing it. It is noteworthy that the prosecution has not even alleged that he had any animosity or hostility towards him.
17. Mst. Nur Begum, P.W. 15 is also an absolutely natural and independent witness. She is neither related to the deceased nor hostile to the respondent. She lives across the street opposite the house of the deceased and there is no reason to disbelieve her when she says that on hearing the report of the fire--arm, she came out to see as to what had happened and saw afar 1dbal in the light of the electric bulb in the street, running away carrying a pistol in his hand. She also saw Mst.
Bivi crying and wailing. There is no reason as to why she would go out of her way and name an innocent person whom she had not seen to be the murderer of Mir Muhammad and thus involve herself in the matter and incur the hostility of the respondent. Such public spiritedness is rather rare in our country and when someone like Mst. Nur Begum does pick up the courage to take her stand in the witness-box to say what she had seen, so that justice may be done, her testimony should not bt1 brushed aside lightly.
18. No doubt the trial Court and the High Court have held that the motive has not been proved but the learned Judges appear to have ignored the fact that the aforementioned motive with regard to the abduction o Mst. Farzand Begum is fully incorporated in the F. I. R. Which was lodged within one hour and 45 minutes of the occurrence. It could not possible have been imagined or presupposed either by Mst. Bivi or Sajawal at that time that Mst. Hashman, P. W. 12, the mother of Mst. Farzand Begum, would be willing to testify to this fact, even if it was false, merely to oblige the complainant.
Mst. Hashman, P. W. Has appeared at the trial and full supported the version and stated that her daughter Mst. Farzand Begum had indeed been abducted by the appellant and had then been got restored to he through the intervention of the deceased. Had this not been a fact she would not have made a statement in open Court about something which involved the honour of her daughter and that of her entire family. The remaining portion of the motive mentioned in the F. I. R.
Has been deposed to by Mst. Bivi, who has stated that the respondent used to pester her husband asking him to arrange for the divorce of Mst. Farzand Begum from her husband and for her being returned to him. This might appear to be a day unreasonable demand as observed by the High Court, but if people were to be so reasonable all the time, then many a crime would remain uncommitted. In any case if this was not the real reason for which the respondent shot Mir Muhammad, it does not in any way reflect adversely on the witnesses who had given this out to be the motive because it is only the killer who knows best as to what had impelled him to take that desperate action. The witnesses have merely stated what they thought could possibly be the reason for this tragic act.
19. The argument that in her statement under section 161, Cr. P. C. Mst. Bivi had not mentioned the motive overlooks her state of mind at the time when that statement was recorded. Since she was the only one to have seen the incident, and was being questioned about it by the Investigating Officer, she naturally thought that it was enough for her to narrate only the details of that incident.
She had already told the motive to Sajawal when she sent him to lodge the F. I. R., which is prior to her making the statement under section 161, Cr. P. C. As already mentioned the motive is duly recorded in the F. I. R.
20. As to the contention that presence of Karamat Hussain has neither been mentioned in the F. I. R.
Nor in the statement of the two ladies recorded under section 161, Cr. P. C., it appears that in the pendemonium and confu--sion that must have provided at that time, nobody probably noticed that Karamat Hussain too had come there. It is probably for this reason that Muhammad Anwar Khan, S. I. The Investigating Officer did not record Use statement on the same day as that of the two women, but recorded it 3 days later on coming to know That he too had seen the culprit running away. Karamat is neither related to the deceased nor alleged to be hostile to the respondent and in the presence of two eye-witnesses there was no reason for the prosecution to have introduced a third eye-witness who was not `their own man' unless he was in fact a person who had seen the occurrence. But even if the testimony of Karamat is left out of consideration, the testimony of the two ladies is sufficient to condemn the respondent.
21. It has been observed by the High Court that if the two ladies knew the name of the culprit they would have told Shafi to lodge the F. I. R. Instead of asking him to call Sajawal for that purpose, specially when he (Shaft) is also related to them in the same degree as Sajawal. To understand this, one has to keep in mind the state of confusion and excitement that have prevailed at the time when Mst. Bivi had suffered a tremendous loss. The dead body of her husband was lying in a pool of blood. She was evidently under a great shock and was wailing and crying. It is not un natural that at a time when such a catastrophy had befallen her she wanted to call her other relatives in the village, specially if she had more faith in any one of them, which she probably had in Sajawal.
As such if she told Shafi to call Sajawal as well, it does not necessarily cast any doubt on her veracity.
22. Similarly the contention as to why Karamat P. W. Did not give the detail of the incident to Sajawal, P. W. Has no substance. Evidently there was no occasion for this when Mst. Bivi was herself giving Sajawal the first band account of what had happened inside her house, where the incident had taken place.
23. We noted the contradictions pointed out by the respondent's counsel in the statements of the two ladies before the Committing Magistrate and those at the trial they are not of such nature as would detract from the veracity of their testimony specially in view of their being the most natural witnesses and also the fact that they had no motive whatsoever to involve the respondent falsely in such a serious case.
In view of what has been observed above we feel that the conclusion arrived at by the Division Bench of the High Court is wholly untenable an that they had erred in brushing aside the evidence of disinterested witnesses on rather flimsy grounds. We therefore, feel that this is a fit case for interference. Consequently we accept the appeal, set aside the judgment o acquittal recorded by the High Court, maintain the conviction of the respon--dent under section 302, P. P. C. And the sentence imposed on him by the learned trial Court.