' Khushi Muhammad (46) and his brother Fateh Muhammad (52), sons of Umra, Caste Jat, resident of Chak No, I3/14-L, Sahiwal were tried by the learned Additional Sessions Judge II, Sahiwal for the murder of Ali Muhammad deceased on 19th October, 1970 at about degarwela in the area of Chak No, 13/14-L, and convicted under sections 325/34, P. P. C. And sentenced to three years' R. I. Each on 1st February, 1973.
' They have appealed.
2. The prosecution case is that about 3/4 months prior to the occurrence Wali Muhammad P. W.
Had gone to the tube-well of Abdul Ghafoor to take water for drinking purposes. Khushi Muhammad appellant also wanted to take water from there in a pitcher. He wanted to remove the pitcher of Wali Muhammad to which the latter protested. Khushi Muhammad appellant slapped Wali Muhammad P. W. Who sent for his brother Ali Muhammad deceased. They both gave shoe- beating to Khushi Muhammad appellant. While leaving that place Khushi Muhammad appellant challenged to take revenge from them.
' On the fateful day, at about degarwela Ali Muhammad deceased was proceeding towards the tube-well of Abdul Ghafoor Arain to take a bath. When he had covered a distance of about one killa from his dhari the appellants caught hold of him and felled him on the ground. They gave kicks and fists blows to him. Wali Muhammad complainant rushed towards the spot. In the meantime, the appellants fled away. The deceased died on the spot as a result of the injuries. The occurrence was witnessed by Dina and Mandha P. Ws. (given up). Wali Muhammad P. W. Left for the village and informed Allah Bakhsh Lambardar and Sultan Chowkidar. He then left for the police station and lodged the F. I. R. Exh. P. A. At 7-15 p. m. With S.-I. Abdul Karim Jan P. W.
7.
' On reaching the spot, the S.-I. Prepared the injury statement Exh. P. E. And inquest report Exh. P. F. In respect of ate deceased. After completing the investigation he challaned the appellants.
3. Dr. Muhammad Feroze Khan M.
0. Civil Hospital, Chichawatni P. W. I conducted autopsy on the dead body of Ali Muhammad son of Lashkar on 20th October, 1970 at 4 p. m. And made the following observations :- No mark of legature was seen around the neck. Face was congested. No mark of ante-mortem injury was seen on the body. Abdomen was distended. The skull and brain were healthy. The neck was not rigid. It was flexible. There was click like sound on the movement of the neck.
' On dissection there was coagulated blood under the neck muscles and the 5th cervical vertebra was protuding out. There was fracture and dislocation of this vertebra. The right lung was congested. The stomach contained about 4 ounces of semi-digested food. The large intestine contained faeces. The urinary bladder contained 2 ounces of urine.
' Death occurred due to shock caused by the fracture and dislocation of the 5th cervical vertebra and haemorrhage due to injury to the right lung internally. The probable duration between injury and death was immediate and that between death and post-mortem about 24 hours. Exh. P. D. Is the post-mortem report.
4. The appellants denied the prosecution allegations. Khushi Muhammad appellant explaining his involvement in the case stated that he had been falsely involved on account of enmity with Wali Muhammad -complainant who is a relative of Allah Bakhsh Larubardar. He gave out that about a year prior to the occurrence a case under section 307, P. P. C. Had been registered against Ghulam Nabi son of Allah Bakhsh Lambardar in which he was cited as prosecution witness. In defence he produced copy of the F. I. R. Exh. D. A. Of the said case. Fateh Muhammad appellant also attributed the case to enmity.
5. At the trial, Wali Muhammad P. W. 5 furnished the ocular account. He is real brother of Ali Muhammad deceased and is complainant in the case. He also deposed about the motive. Dina and Mandha P. Ws. Who were also alleged to have seen the occurrence were given up as having been won over by the accused.
6. Relying on the evidence of Wali Muhammad P. W. 5, the trial Court convicted and sentenced the appellants as stated above.
7. It is contended by the learned counsel for the appellants that the learned trial Court has failed to properly weigh and assess the prosecution evidence and further that the medical evidence has not been properly evaluated.
8. Since the case rests on the solitary evidence of Wali Muhammad P. W. The question that falls for determination is as to whether the conviction could be based on his sole testimony and as to whether he was a truthful witness but so far as the question of his appearing alone is concerned, this fact by itself will have no adverse bearing on his testimony because the law as it stands presently does not specify any particular number of witnesses to prove the offence of the present type. The Legislature has not insisted on laying down any such exception to the general rule recognized in section 134 of the Evidence Act. The section enshrines the well-recognised maxim that "evidence has to be weighed and not counted". It is not seldom that a crime is committed in the presence of only one witness. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime would go unpunished. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. It is a settled proposition that if such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused persons on such proof. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.
' In the instant case Wali Muhammad P. W. Is a natural witness because the occurrence had taken place near his dhari. He had no direct motive to falsely implicate the appellants. There is nothing on the record to suggest that anyone else had a motive against the deceased. He would not have committed any error or mistake in identifying the appellants because they were fully known to him also for the reason that the occurrence had taken place in the broad daylight near his dhari. He was, therefore, rightly believed by the learned trial Court.
9. The reasons advanced by the trial Court for recording the conviction of the appellants under sections 325/34, P. P. C. Also appear to be sound. The doctor who performed the post-mortem examination stated that most probably the right lung of the deceased was T. B. Affected and that this lung had bled and could be the cause of immediate death. He further opined that the fracture and dislocation of the vertebra of the deceased could be caused due to sudden fall of the deceased during some sort of convulsive act of the patient during the disease: From this it appears that the deceased was a sick person and his death was not the direct result of the injuries given to him by the appellants nor did they intend the same and on the other hand their common intention was to subject him to beating. They were empty-handed and in these circumstances they were rightly convicted under section 325/34, P. P. C. I, therefore, uphold their conviction.
8. As regards the sentence they deserve some leniency because the occurrence had taken place on 19th October, 1970 and they were convicted on 1st February, 1973 and a considerable period has elapsed since then. I, therefore, think that the ends of justice will be met if their sentence is reduced to the period of imprisonment already undergone by them. I order accordingly.
9. With the above modification in the sentence, the appeal is otherwise dismissed.