Maqbool Ahmed, appellant, aged about 13,114 years was convicted by the Sessions Judge, Mianwali, on 7th June, 1969 under section 302, P. P. C., and was sentenced to imprisonment for life for committing the murder of one Azizullah Khan on 30th March, 1968. The appellant has challenged the order of conviction and sentence passed, against him in the present appeal.
2. Briefly stated the facts of the case giving rise to the prosecu--tion and conviction of the appellant are that on 30th March, 1968 at about 6-30 p. m. Azizullah Khan deceased accompanied by Abdul Qadeer Khan his maternal-uncle, was going to his house. When they reached near the house of Ahmed Arain in Mohallah Mohajreen Muhammad Rashid Wala in Piplan; they saw the appellant corning from the opposite direction. The appellant on reaching near Azizullah Khan deceased challenged him saying that he would avenge the beating given by the deceased's uncle Tufail Ahmed and others .To his (appellant's) uncle Ghulam Sarwar. The appellant took out a knife and attacked Azizullah Khan deceased stabbing him in the chest on the left side. Abdul Qadeer Khan raised alarm whereupon his brother Muhammad Amir, Hafiz Ghulam Muhammad and Abdul Qayyum who were following the appellant rushed towards the place of occurrence. The appellant, however, ran away from the scene of occurrence. Azizullah khan who had fallen on the ground after being stabbed was placed on a cot and was taken to the police station but he succumbed to the injuries before reaching the police station Piplan which was at a distance of about one furlong from the place of occurrence. Abdul Qadeer Khan lodged F. I. R. Exh. P. A. Which was recorded by Manzoor Ahmed, S. H. O. At the Police Station Piplan.
3. The motive for, committing the murder of Azizullah Khan as stated by Abdul Qadeer Khan in the F.
I. R. Exit. P. A., was that about seven months before the occurrence, Tufail Ahmed uncle of Azizullah Khan deceased had caused injuries to Ghulam Sarwar, uncle of the appellant, and although a case against the assailants w4s pending in a criminal Court, the appellant attacked Azizullah Khan to avenge the injuries sustained by his uncle Ghulam Sarwar.
4. After registration of the case Manzoor Ahmed, S. H. O. Pre--pared the inquest report Exh. P. G. And injury statement Exh. P. F. And forwarded the dead body of Azizullah Khan under the escort of Muhammad Yamin and Madad Khan, Foot Constables, for post-mortem examination. He also recorded the statements of the ere-witnesses Muhammad Amir, Abdul Qayyum and Hafiz Ghulam Muhammad who had also seen the occurrence and had accompanied the informant Abdul Qadeer Khan to the police station along with the dead body of Azizullah Khan. At about 9-30 p. m.
On the day of occurrence, Manzoor Ahmad, S. H. O., inspected the place of occurrence and took blood-stained earth from there vide Memo. Exh. P. B. And made it into a sealed parcel. On 31st March, 1968 blood-stained clothes of Azizullah Khan deceased, shirt P. 1, banyan P. 2 and shalwar P 3 were taken into possession by him after the same were produced by Mohammad Yamin, Foot Constable. He made a sealed parcel of the aforementioned clothes. On the same day the appellant' was arrested. Site plan Exh. P. E. And its duplicate copy Exh. P. E/1 were got prepared from Mehr Muhammad Khan Patwari and after the completion of the investi--gation the appellant was challaned and sent up for trial.
5. The appellant did not admit the charge at the trial and in order to prove its case the prosecution examined as many as 8 witnesses. Dr. Nazir Ahmad, who had conducted post-mortem examination on the dead body of Azizullah Khan appeared in Court to depose that he had noticed one stab wound 2/3" x 1/4" obliquely over the front of left chest, 1 ----- inch above and medial to the left nipple on the dead body of Azizullah Khan son of Azim Khan, caste Pathan aged 13 years, resident of Piplan, on 31st March, 1968 at 10 a. m., when he held the autopsy on the dead body. The wound was 3 --" left to the medial line. The internal examination of the dead body showed that pleura of left side was injured, left lung was injured in the lower part and the left chest cavity was full of blood. The pericardium was pierced over the upper part and the left ventricle of heart was pierced through and through. According to him, death had occurred due to shock anal haemorrhage and injuries to the vital organs as a result of the injury fund on the dead body which was ante-mortem and had been caused by sharp-edged weapon. The injury was sufficient to cause death in the ordinary course of nature. The time between injury and death was immediate and between death and post-mortem was about 15 hours. The injury, in his view, could be caused by a knife.
6. Alam Sher P. W. 2, Muhammad Yamin P. W: 3, and Mehr Muhammad Khan Patwari P. W 4 were formal witnesses while Abdul Qadeer Khan P. W. 5, Hafiz Ghulam Muhammad P. W. 6 and Abdul Qayyum P. W. 7 were examined by the prosecution to supply ocular account of the occurrence.
Manzoor Ahmad, S. H. O., was the last witness to appear as P. W. 8 and deposed with regard to .The investigation of the case.
7. The appellant in his statement under section 342, Cr. P. C., took up the plea that he had been falsely implicated in the case due to enmity. According to him; Azizullah Khan deceased had quarrelled with his class- fellows while coming back after seeing a kabaddi match and it was in the melee which followed the quarrel that- he was stabbed by some one in the darkness. The appellant, however, did not produce any evidence in defence. The learned Sessions Judge relying on the evidence produced by the prosecution found the appellant guilty of the offence of murder and convicted him accordingly.
8. The main ground on which the order of conviction passed against the appellant has been challenged is that none of the eye--witnesses examined by the prosecution is reliable because they are not only related inter se but are also related to the deceased and belong to the party with whom the appellant and his family's relations are strained. Abdul Qadeer Khan P. W. 5 is the maternal-uncle of Azizullah Khan deceased while Hafiz Ghulam Muhammad P. W. 6 is the paternal uncle of the deceased and Abdul Qayyum is the first cousin of the deceased. According to the prosecution's own case, Tufail Ahmed, paternal-uncle of Azizullah Khan deceased and some other person had injured Ghulam Sarwar, paternal-uncle of the appellant, about six months before the occurrence. A case in respect of the above incident was pending in a criminal Court against Tufail Ahmed and others at the time of occurrence. It is also disclosed by Abdul Qadeer P. W. 5 that Tufail Ahmed, uncle of Azizullah Khan deceased, was also given beating by Ghulam Sarwar, appellant's uncle, and 15 other persons and that they were being prosecuted and a case was pending against them at the time of occurrence. Learned counsel for the appellant has argued that in the absence of any corroborative evidence it is unsafe to place reliance on the deposition of interested and inimical eye-witnesses and the order of conviction based on such evidence is not legally sustain-- able. In this connection he has referred to Khursheed Ahmad v. Kabool and others (PLD 1964 Kar.
356), Fattah etc. v. The State (1978 P Cr. L J 414) and certain other cases.
9. There is no doubt that all the eye-witnesses examined by the prosecution in the present case are closely related to the deceased and further that the relations of the deceased's family with the appellant's family were strained before the occurrence. It is also true that Courts generally look for some corroborative evidence by way of abundant caution before accepting evidence of partisan witnesses in criminal cases but this rule of requiring corroboration of partisan evidence is merely a rule of prudence. The real object of following the above rule is to find out whether the interested and partisan witnesses have stated the true facts before the Court or they have falsely implicated their enemies and against whom they have a motive to depose falsely. If the Court on proper appraisal of their testimony reaches the conclusion that they have stated the true facts, the Court can place reliance on their testimony even in the absence of any corroborative evidence In Niaz v.
State (PLD 1960 SC 387) it was observed :- "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 whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be 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".
The above view was followed in Shahzada v. State and 8 others (PLD 1977 SC 413) and it was further elaborated thus :- "But if the Court finds that the number mentioned by interested persons may have been exaggerated, their word cannot be made the basis of conviction and the Court will have to look for some addi--tional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused".
It was further observed :- "The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstances of each case. However the circumstance itself must be proved beyond all reasonable doubt. Strictly speaking this is a rule of prudence though not of law, for safe dispensation of criminal justice in such cases".
10. In the present case the appellant alone was accused of having committed the murder of Azizullah Khan by Abdul Qadeer Khan P. W. 5 who lodged the F. I. R. Exh. P. A. The appellant was about 13 or 14 years old at the time of occurrence and was a student of 8th class, The fact that Abdul Qadeer Khan P. W. Mentioned the name of the appellant as the only assailant of Azizullah Khan deceased in the F. I. R. Is a strong circumstance which shows that the complainant party which was undoubtedly inimical towards the appellant had stated the true facts to the Police because it was also possible for Abdul Qadeer Khan P. W. To have implicated any other person or persons of the accused party. While appearing as P. W. 5 he has made a consistent statement and has successfully withstood the test of cross-examination. The fact that he has not mentioned in the F. I. R. That he and the deceased were coming from the bazar at the time of occurrence and that they could go to their house also by some other street is not so material and significant so a$ to render his testimony doubtful. Similarly the conduct of the eye-witnesses that none of them ran after the appellant to apprehend him after the occurrence as disclosed by Abdul Qadeer Khan in his cross-examination would not make their presence at the place of occurrence doubtful. There are some minor discrepancies in the statement of Abdul Qadeer Khan P. W. As for instance he had not mentioned in the F. I. R. Exh. P. A., that he had brought the cot from g the house of Ahmed Arain or that Azizullah Khan had become uncon--scious at the spot or that Azizullah Khan was found dead when the cot on which he was being carried was placed near the wall of the Police Station but none of these discrepancies is of such a nature as would render the prosecution story doubtful.
The other two eye-witnesses namely Hafiz Ghulam Muhammad P. W. 6 and Abdul Qayyum P. W. 7 have also made consistent statements when they were examined by the prosecution at the trial.
Learned counsel for the appellant has further contended that their presence near the place of occurrence which was in front of the house of Ahmed Arain is highly doubtful especially when their houses are quite at some distance from the place of occurrence. There is however, not much force in the contention because they both Gave stated that they were proceeding to the house of Ch. Abdul Hameed for taking back their cots and beddings which they had lent to him on the occasion of the marriage of his sister 3 or 4 days before the occurrence and when they had reached in front of the house of Ahmed Arain that the appellant who was going ahead of them had shouted and challenged the deceased that he would avenge the beating given to his uncle by the deceased's uncle. The presence of the afore--mentioned eye-witnesses at .The place of occurrence has thus been satisfactorily explained by them. The mere fact that they had not mentioned the purpose of their visit to the house of Ch. Abdul Hameed in their statements made before the Police or in their statements recorded under section 164, Cr. P. C. Is not of much consequence. Similarly the fact that the appellant had raised a lalkara before attacking the deceased as stated by Hafiz Ghulam Muhammad P. W. 6 in ht4 cross-examination which fact he had omitted to mention in hi; statement recorded by the Police and the statement recorded under section 164, Cr. P. C. Does not adversely affect the prosecution case.
11. It has been contended on behalf of the appellant that it was not possible to identify the appellant, as the alleged occurrence had taken place at 6-30 p. m. After the sunset because on 30th March, 1968 the sunset time at Lahore was 6-20 p. m. And it must be 6-30 p. m. At Piplan which was situated towards the west of Lahore. There is not much substance in this contention because the appellant was not a stranger to Abdul Qadeer Khan and the other eye-witnesses as they were all residents of the same place and there was sufficient light at 6-30 p. m. When the occurrence took place even if it be accepted that the sunset time at Piplan was 6-30 p. m. Learned counsel for the appellant has pointed out that according to Hafiz Ghulam Muhammad he had seen the appellant from his back while giving knife blow to the deceased and as such it was not possible for him to identify him. As noticed earlier and as explained by Hafiz Ghulam Mohammad P. W. 6 himself the appellant was not a stranger and was previously known to him and as such it was not difficult for him to identify him particularly when he had challenged the deceased by saying that he would avenge the beating given to his uncle by the deceased's uncle. Moreover, Abdul Qayyum P. W. 7 who was accompanying Hafiz Ghulam Muhammad P. W. 6 when the appellant was going ahead of them had explained that the appellant after stabbing the deceased had turned round to look towards them.
12. Learned counsel for the appellant has further contended that. The appellant was prejudiced in his trial as he was not supplied the' copies of the statements of Yasin, Din Muhammad mirasi and Muhammad Amir qasab whose statements were recorded by the Investigating Officer when they had appeared during the investigation of the case and had claimed to be the eye-witnesses of the occurrence. According to the learned counsel for the appellant it was not for the Investigating Officer to have decided whether they were truthful witnesses or not as it was the n function of the Court to evaluate their evidence for deciding the case. ` The prosecution's failure to examine the aforementioned persons as witnesses in the present case raises presumption against the prosecution that these witnesses, if examined would not have supported the prosecution case.
Learned counsel for the appellant has referred to Ch. Noor Muhammad v. The State (1969 P Cr. L J 568) where it was held that an accused could not be deprived of the right of having access to the statements of all persons examined by the Police in connection with the case irrespective of the fact whether or not such persons were cited as witnesses by the prosecution.
13. The appellant has not been prejudiced in his trial due t non-supply of copies of the statements of the persons who bad appeared before the Investigating Officer and had claimed to be the eye- witnesses in the case because in the first instance, the afore--mentioned persons were not cited as prosecution witnesses nor were they examined by the prosecution at the trial and secondly, their statements recorded during the investigation of the case could at best be used under section 162, Cr. P. C. For the purpose of contradicting them in case they had appeared as witnesses in Court. That eventuality, however, had not arisen because they were not produced as witnesses by the prosecution. It is not known what statements were made by them before the Police. If they had supported the defence version that Azizullah Khan deceased was stabbed by some one during a quarrel which the deceased had with his class-fellows while coming back after seeing a kabaddi match, they could have been examined as defence witnesses and their statements would have certainly carried weight after the admission made by Manzoor Ahmad P. W. 8 that they had appeared before him during the investigation and bad claimed to have seen the occurrence. On the other hand, if they had supported the prosecution case that it was appellant who had stabbed Azizullah Khan to death, the appellant was not prejudiced in his defence if the prosecution bad not examined them as witnesses or had failed to supply copies of their statements to him. It may not be out of place to mention here that the appellant bad never asked the prosecution or made any request to the Court directing the prosecution to supply copies of statements of the aforementioned persons during his trial. It appears that the objection now raised on behalf of the appellant is based merely on the admission of Manzoor Ahmad P. W. 8 that be had recorded the statements of the persons mentioned above when they had appeared before him during the investigation of the case and had claimed to be the eye-witnesses of the occurrence.
14. As regards the argument that adverse presumption should be drawn against the prosecution on account of their failure to produce all the eye-winesses in the case at the trial it may be mentioned that it is for the prosecution to choose to whom they would produce as witness in Court as the prosecution is not even bound to examine all the witnesses mentioned in the calendar.
Moreover, each and every person who claims to be acquainted with the facts of the case and who appears or is summoned by the police during the investigation of a case need not necessarily be produced as a witness at the trial because only such persons who are fully conversant with the facts of the case can assist the Court in deciding the case. Under the circumstances no adverse presumption can be drawn against the prosecution in the present case for 'its failure to cite or examine the aforementioned persons as witnesses.
15. In the case referred to above by the learned counsel for the appellant the prosecution had supplied copies of statements of only 20 out of 35 prosecution witnesses and it was for that reason that the objection raised on behalf of the accused regarding non-supply of copies of the statements of the prosecution witnesses was upheld and the prosecution was directed to supply the copies of all the prosecution witnesses. The present case is clearly distinguishable on facts.
16. After having considered all the aspects of the case it has been found that the order of conviction and sentence passed against the) appellant is not open to question. The learned Sessions Judge ha rightly accepted the ocular evidence produced by the prosecution. The evidence of motive and medical evidence produced by the prosecution prove that the eye- witnesses examined in the case are truthful witnesses. Thus there is no force in the present appeal which is hereby dismissed. The appellant who is on bail shall immediately be taken into custody and shall be required to undergo the unexpired portion of the sentence awarded to him.