' KIIIZAR HAYAT, J.-Allah Ditta and his brother Allah Bakhsh have been tried and convicted by Additional Sessions Judge, Multan, for the murder of Walidad. Allah Ditta has been sentenced to death while Allah Bakhsh to life imprisonment, plus a fine of Rs, 1,000 each in default whereof to undergo one year's R. I. Each. Both the convicts have filed separate appeals from jail against their conviction and sentence. There is also a reference before us for confirmation of death sentence of Allah Ditta. The murder reference as well as the two appeals are being disposed of by this single judgment.
2. The facts of the prosecution case briefly are that on the night between 5th and 6th October, 1978 Walidad (deceased), his wife Mst. Jannat, his two brothers Talib Hussain and Fazil and Mst. Sakina wife of Talib Hussain were sleeping in front of their Kothas in Chak No, 12/ G. H., District Multan. Talib's minor son Nazir Ahmad was ailing, therefore, Talib and his wife Afst. Sakina were awake nursing him and a lamp was burning nearby. At about mid-night they saw Allah Ditta, appellant, armed with a gun and Allah Bakhsh, appellant, armed with a pistol who came there from the eastern side. Allah Bakhsh at pistol point threatened Talib Hussain and his wife Mst. Sakina not to move from their place while Allah Ditta, appellant, went right upto the cot of Walidad and fired from his gun placing its muzzle near his head. Hearing the report of the gun Fazil and Mst. Ghulam Jannat also woke up and saw the occurrence Pehlwan Lodhra, and Haqnawaz, the neighbourers also reached the spot.
Both the appellants disappeared with their weapons. Walidad died at the spot due to gunshot head injury.
3. Talib Hussain (P. W. 10) went to Police Station Sarai Sidhu at a distance of 11 miles from the place of occurrence and lodged F. I. R. Exh. P. C. At 7-30 a. In., the following morning, 'which was recorded by S.-I. Ghulam Rasul (P. W. 7). The Sub-Inspector reaching the spot prepared injury statement and inquest report of the deceased and sent the dead body for post-mortem examination under police escort. He secured blood-stained earth under memo. Exh. P. F. From the scene and also seized blood-stained charpai and the bedding of the deceased wherein he was sleeping at the time of attack. Lantern P. 7 which was allegedly burning near the cot of the deceased was also taken into possession. The doctor gave a sealed parcel containing pellets and wads removed from the wound of the deceased to Muhammad Ali Constable who produced it before the Sub-Inspector.
The Sub-Inspector arrested the accused and after completing the investigation challaned them to Court.
4. Motive as stated by Ahmad Bakhsh (P. W. 9) is that he engaged his daughter Mst. Jannat with his nephew Allah Ditta appellant. Since Allah Ditta was a badmash, he broke the engagement and married Mst. Jannat to Walidad (deceased). Allah Ditta then demanded hand of Mst. Anwar, his other daughter but he refused. On account of this grudge, the appellants murdered his son Mumtaz and also Walidad his son-in-law.
5. Dr. Syed Zia-ud-Din Zaidi (P. W. 13) performed autopsy on the dead body of Walidad on 6th October, 1978 and noted one lacerated wound on the right back side of the 1..Ead 7" x 5", brain was coming out, the skin was burnt round the wound, hair were singed and the skull bone was found completely shattered. He removed a pellet and wads from the wound. In his opinion the injury was caused by fire-arm and was sufficient in the ordinary course of nature to cause death. In reply to a question in cross-examination he stated that the gun was fired from distance of an inch from the head of the deceased.
6. At the trial the prosecution examined 13 witnesses in support of its case. Out of them Talib Hussain (P. W. 10), Mst. Sakina (P. W. 11) and Fazil (P. W. 12) furnished the eye-witness account ; Ahmad Bakhsh (P. W. 9) narrated the motive ; Dr. Syed Zia-ud-Din Zaidi (P. W. 13) proved that Walidad met an unnatural death and S.-I. Ghulam Rasool (P. W. 7) deposed about the investigation he conducted in the case. The appellants when examined under section 342, Cr. P. C. Simply denied the allegations and declined to lead evidence in defence. When asked, why had the P. Ws. Deposed against them, they replied that the witnesses besides being related inter se and to the deceased are also inimically disposed towards them.
7. All the three eye-witnesses supported the prosecution case. Of them Talib Hussain and Fazil are the real brothers of Walidad deceased while Mst. Sakina is the wife of Talib Hussain. They stated that both the appellants are also their relations who used to visit them and there existed no previous enmity between them and the appellants. They claimed to have identified the appellants in the light of the lamp and also the moonlight. The lamp was allegedly burning at a distance of about two Karams from the cot of the deceased. Ahmad Bakhsh (P. W. 9) maternal-uncle of the appellants stated that because he broke the engagement of his daughter Mst. Jannat with Allah Ditta appellant and married her to Walidad and also refused him the hand of his second daughter Mst. Anwar, therefore, both the appellants and their brother Imam Bakhsh murdered his son Mumtaz and also his son-in-law Walidad. S.-1. Ghulam Rasool (P. W. 7) stated that Allah Ditta, appellant was already under arrest in a murder case of Police Station Tulamba (pertaining to murder of Mumtaz) when he formally arrested him in the present case. He also stated that in Tulamba case the appellant had led to the recovery of a gun.
8. The learned trial Court having believed the motive and the ocular evidence; held the appellants guilty of murder of Walidad and sentenced them as indicated above, which has been challenged before us through jail appeals.
9. We have gone through the record with the assistance of the learned counsel for the appellants as well as for the State.
10. It is argued on behalf of the appellants that all the eye-witnesses being closely related to the deceased fall under the category of "interested witnesses" and, therefore, their testimony cannot be relied upon without corroboration by some independent evidence which is not available in this case. No doubt the eye-witnesses are close relations of the deceased but it is well-settled by now that the testimony of a witness cannot be thrown away merely due to relationship provided such testimony is otherwise free from any legal defect and inspires confidence. We are of the view that a witness can be called "interested witness" only if he besides being related is shown to be having ill- will/animosity against the accused prior to the A occurrence. We have noted that the witnesses in this case have no previous enmity with the appellants nor was it suggested to them by thel defence. On the other hand Allah Ditta appellant had living grouse with Walidad deceased, who was married with his fiance, Mst. Jannat. The defence has not disputed the place, time and manner of occurrence. The fact that eye-witnesses lived with the deceased in the house where Walidad B was done to death too has not been challenged. Their presence at the relevant time at the place of occurrence is, therefore, most probable and natural. In these circumstances, we do not consider them as "interested witnesses" and there is no need to look for corroboration for relying their testimony. Hence the objection is repelled.
11. He next contended that it was a night occurrence, therefoie, the chances of committing mistake in identifying the assailants in moon-light were there. He also disputed if a lantern was burning at the relevant time at the place of occurrence. According to him, it was padded by the police so as to provide artificial source of light in order to make the Court believe that witnesses were in position to identify the appellants. He pointed out that the witnesses have made discrepant statements about the place where the lantern was lying at the relevant time. Talib Hussain P. W. Stated that the lamp was "hanging on the wall near the choolha (hearth)" ; whereas in memo. Exh. P. J. It is written that on the night of occurrence the "lamp was burning near the charpai of deceased" ; while in the site plan Exh. P. B. It is described at point No, 6 that the "lamp was hanging with the hook of door".
One knows by common experience that hook of a door is usually nailed in the outer frame of the door which is always fixed in the wall. A lamp hanging with the hook fixed in the frame of the door can be described as "hanging with the wall" and also as "hanging with the door". So, we do not agree with the learned counsel that place of lamp has been told differently by the witnesses. Again besides the light of lamp, moon light also helped the witnesses in the identification of the appellants, who were not strangers, rather they were close relatives of the witnesses and were on visiting terms with them. It is pertinent to note that according to doctor gun was discharged from an inch's distance from the head of the deceased. It is also in evidence that Allah Bakhsh, appellant threatened the witnesses at pistol point not to move from their place, and Allah Ditta, appellant fired at the deceased by standing just close to his charpai. Naturally the charpais of other family members would be lying near that of Walidad. There is nothing unnatural in it if Talib and Mst.
Sakina P. Ws. Were awake nursing their child when the appellants arrived and attacked the deceased. In thes circumstances, we are fully satisfied that the witnesses were in perfectic position to identify and they rightly identified the appellants from al distance of 2 Karams in the light of the moon and of the lamp, as claimed by them.
12. Learned counsel lastly contended that Allah Ditta, appellant, was denied the hand of the girl who remained engaged to him for 6 years. In our society if one's fiance is married to another person, it is taken a insult, therefore, he maintained, that Allah Ditta appellant seems to hay murdered Walidad in utter distress, hence, extreme penalty of death is not called for. We are not persuaded that this constitutes a mitigatin circumstance in law in award of sentence. Walidad, deceased caused n annoyance whatsoever to Allah Ditta, appellant as Mst. Jannat was married to him by her father.
We, therefore, find that the appellant committed murder of Walidad in cold blood. As Allah Ditta fired th fatal shot, so he richly deserves the normal penalty of death provided under the law. Allah Bakhsh did not cause injury to the deceased and E facilitated his co-accused in committing the murder by keeping the witnesses at bay at pistol point, therefore lesser penalty awarded to him seems proper.
13. For what has been stated above, we are of the considered view that both the appellants have been rightly convicted and sentenced fork, the murder of Walidad. Accordingly we uphold their conviction and also maintain their sentence. The result is that both the appeals fail and the death sentence of Allah Ditta is confirmed. Allah Bakhsh shall get benefit under section 382-B, Cr. P. C.