' M. S. H. QURAISHI, J.-This judgment will dispose of two appeals by leave of the Court. Namely, Criminal Appeal No, 57 of 1978 of Muhammad Sadiq and Muhammad Ashraf and Criminal Appeal No, 58 of 1978 of Ghulam Hussain, Mushtaq Hussain, Muhammad Razzaq and Baqar Hussain.
2. The six appellants and their co-accused Nazeer Hussain had been convicted by the Additional Sessions Judge, Sialkot on 2-1-1975 of the murder of Muhammad Siddiq and of attempt on the life of Naseer Ahmad P.
W. Consequently they had been sentenced under section 302/149, P. P. C. To imprisonment for life and to pay a fine of Rs, 1,000 each or in default in payment thereof to undergo further R. I. For two years ; under section 307/149, P. P. C. To R. I. For seven years and to pay a fine of Rs, 500 each or in default in payment thereof to further R. I. For one year and under section 148, P. P. C. To R. I. For two years each. The substantive sentences were ordered to run. Concurrently. The fine imposed under section 302/149, P. P. C., if realized, was to be paid as compensation to the widow of the deceased. On appeal before the High Court, the conviction and sentences of the appellants were maintained though their co-accused Nazeer Hussain was acquitted vide judgment dated 2-3-1976. Aggrieved, Muhammad Sadiq and Muhammad Ashraf appellants filed Criminal Petition No, 181 of 1976 while the remaining four moved Jail Petition for Leave to Appeal No, 63-R of 1976, in the result of which leave was granted on 22-1-1978 in both the petitions.
3. The relevant occurrence took place on 17-7-1972 at about 6.30 p. m. In a street of Mauza Bharthanwala, Tebsil and District Sialkot. Muhammad Siddiq, the deceased, had gone out of his house into the street when he was surrounded by the seven accused. Muhammad Razzaq was armed with a spear while the others were armed with Takwas. Attracted by the commotion, Mst. Sakeena Bibi, widow of the deceased, Khair Din, Fakhar Hussain and Naseer Ahmad came. Within their seeing, the accused opened the attack on the Lalkara given by Muhammad Sadiq to kill the deceased. Muhammad Sadiq and Muhammad Ashraf gave blows with their Takwas on the deceased, whereupon he tried to rush towards his house but was given a spear blow on the back by Muhammad Razzaq. Nazeer Hussain co-accused and Baqar Hussain appellant delivered Takwa blows at which the deceased fell down. All the accused then gave further blows. Naseer Ahmad P. W., who tried to intervene with a Dang, was also given Takwa blow by Baqar Hussain, in the result of which his right band was cut off. The accused then left the scene with their weapons. The deceased in injured condition and Naseer Ahmad, the injured P. W., were taken to hospital on cots but the deceased died in the way. Muhammad Aslam, S. H.
0., on coming to know of the incident went to the Civil Hospital, Sialkot, and as Naseer Ahmad P. Ws. Was unconscious and unable to make a statement, he recorded the statement of Khair Din at 11 p. m., which formed the basis of the formal F. I. R. In the case.
4. The motive, according to the prosecution, was that the deceased, Muhammad Sadiq appellant and another had obtained loan from the A. D. B. P. For installation of a tube-well. As the loan had remained unpaid, a warrant of recovery had issued against Muhammad Sadiq appellant who had acted as attorney for the others, and in the result he had been arrested and detained and released when his relatives had paid the amount. Muhammad Sadiq had been demanding from the deceased the payment of his share of the loan but the deceased had refused to oblige saying that nothing was due from him. This bad also led to an altercation between the two at about noon time on the day of the occurrence..
5. Muhammad Sadiq was arrested on 20-7-1972 and a blood-stained shirt Exh. P. 4 was recovered from his person. Ghulam Hussain, Mushtaq Hussain and Baqar Hussain appellants were arrested on 21-7-1972 and their blood-stained shirts Exhs. P. 5, P. 6 and P. 7, respectively, were recovered. They also led to the recovery of blood-stained Takwas Exhs. P. 8, P. 9 and P. 10, respectively. From Muhammrd Razzaq appellant, who was arrested on 26-7-1972, blood-stained shirt Exh. P. 11 and blood-stained spear Exh. P. 12 were recovered. No recovery was effected from Nazeer Hussain co-accused who was arrested on 25-8-1972 and Muhammad Ashraf appellant who was arrested on 8-9-1972.
6. It may be mentioned that only Muhammad Ashraf appellant is related to Muhammad Sadiq appellant being the son of the daughter of the latter's sister. The other four appellants are not related to Muhammad Sadiq, but are related inter se. Ghulam Hussain being the father of Mushtaq Hussain and uncle of Muhammad Razzaq, Nazeer Hussain acquitted co-accused being the paternal cousin of Ghulam Hussain and father of Baqar Hussain appellant.
7. The post-mortem examination disclosed the presence of as many as 18 injuries on the person of the deceased, all of which excepting four were incised wounds, the four being abrasions. Injuries Nos. 1, 2, 12 and 14 were sufficient to cause death in the ordinary course of nature. The medical examination of Naseer Ahmad P.
W. Held at 10 p. m. On the day of occurrence, disclosed the presence of two incised wounds on his person, of which injury No, 1 being on the back and front of the right hand and cutting the radial artery was declared to be grievous and dangerous to life.
8. Apart from the medical evidence, the story of motive and the recoveries from the appellants, the prosecution furnished the ocular evidence of Khair Din (P. W. 13), an uncle of the deceased, Fakhar Hussain (P. W. 14), brother of the widow of the deceased, Mst. Sakeena Bibi (P. W. 15), widow of the deceased, and Naseer Ahmad (P. W. 16), the injured P. W. The latter, however, named only five of the accused omitting Muhammad Sadiq and Muhammad Ashraf appellants. He also did not mention the presence of Khair Din and Fakhar Hussain P. Ws.
On this, he was, with the permission of the trial Court, cross-examined by the Public Prosecutor but he stuck to his version.
9. The appellants pleaded not guilty to the charges and denied the allegations including the story of the motive.
They also denied the recoveries of their clothes and weapons except Muhammad Sadiq who admitted the recovery of the shirt from him but denied that it had been blood-stained. Ghulam Hussain and his co-appellants examined Muhammad Siddique D. W. 1, a brother of Baqar Hussain appellant, according to whom the occurrence, which had taken place in the dark at about Isha prayer time, was unwitnessed, and the injuries on the deceased had been inflicted by Naseer Ahmad P. W. And Altar, Khaliq and Anwar, which fact had been told by him by the deceased himself. He further stated that it was he who had brought the police to the scene who after making preliminary investigation at the spot had registered the F. I. R. He, however, admitted that the police had not recorded his own statement, nor had he complained to the authorities about the false implication of the seven accused in the case.
10. The trial Court, in view of previous enmity between Khair Din and Muhammad Sadiq and Muhammad Ashraf appellants, kept his evidence, "as a measure of abundant caution", out of consideration though it did not totally discredit him. It, however, relied on the ocular testimony of Fakhar Hussain and Mst. Sakeena Bibi and of Naseer Ahmad to the extent he supported the prosecution case and believing the stoty of motive and the recoveries of the blood-stained articles held all the seven accused guilty.
11. Before the High Court it was contended that the F. I. R. Had been recorded after some preliminary investigation at the spot in the course of which the statement, of Mst. Sakeena Bibi P. W. Under. Section 161, Cr. P. C. Had also been recorded ; that the presence of Khair Din and Fakhar Hussain P. Ws. Had to be excluded in view of the testimony of Naseer Ahmad and that although there was evidence to show that Mst.
Sakeena Bibi was present but in view of the contradiction between her evidence and that of. Naseer Ahmad P.
W., she could not be relied upon without independent corroboration which was not forthcoming at least against Muhammad Sadiq and Muhammad Ashraf appellants and Nazeer Hussain co-accused. The submission was that no one would keep on wearing blood-stained shirt for more than four days in the month of July or preserve the weapon of offense for such period. The contentions were repelled, particularly in view of the evidence of Mst. Sakeena Bibi and Fakhar Hussain P. Ws. Against whom there was no suggestion of any animus to falsely implicate the appellants. The enmity suggested to Fakhar Hussain as against Muhammad Sa.Diq and Muhammad Ashraf was, in the opinion of the High Court, not of the nature which would impel him to falsely implicate them. The High Court also held that Khair Din P. W. Who lived in the same Gali was natural witness. In regard to Naseer Ahmad P. W., the Court held that he had made concession favouring Muhammad Sadiq and Muhammad Ashraf appellants. The defence plea that the occurrence had taken place at Isha prayer time and was unwitnessed was also repelled in view of the medical examination of Naseer Ahmad having taken place at 10 p. m. At the hospital which was about nine miles away and where the deceased and the injured had been taken on cots. The High Court, therefore, maintained the conviction and sentences of the appellants. However, in view of the age of 70/72 of Nazeer Hussain co-accused and as no recovery had been effected from him, he was given the benefit of doubt and acquitted.
12. Leave was granted for reappraisal of evidence in the interest of justice.
13. Learned counsel appearing for appellants Muhammad Sadiq and Muhammad Ashraf in Criminal Appeal No, 57 of 1978 urged that in view of the admission made by Mst. Sakeena Bibi (P. W. 15) and Nazir Ahmad F. C. (P.
W. 2), the F. I. R. Had in fact been registered after investigation of the case. Mst. Sakeena Bibi had stated : "The police had come to our village some where in the mid-night. At that time Siddique deceased and Naseer P.
W. Had already been removed to the hospital in the Sialkot City. The police had enquired from me as to the occurrence and about the whereabouts of the P. W. Naseer and my husband and Muhammad Siddique deceased."
' Nazir Ahmad F. C. Had before the Committing Magistrate made a statement (which he denied but was duly confronted) that when he had reached the village, the deceased was still there in injured condition. This police witness being the corpse-bearer is only a formal witness and as such the concession B made by him is not deserving of much weight. See Bagu v. State , Muhammad Sharif v. Muhammad Javed and Zulfikar All Bhutto v. State . The S. H.
0. Had himself denied having come to the spot before the recording of the F. I. R. According to him, he had come to the spot at about midnight and this is what Mst. Sakeena Bibi had confirmed. The inference that the F.
I. R. Had not yet been recorded is sought to be drawn by learned counsel from the enquiry made by the police about the whereabouts of the deceased and injured Naseer Ahmad. Such enquiry could have been made also in the course of the investigation. It is to be noted that she had further stated : "I do not remember when the police went away from Our village after recording my statement." Had the S. H.
0. Come to the spot before recording the F. I. R. Then he would have left for the hospital immediately' but Mst.
Sakeena Bibi does not say so. It is, therefore, obvious that the arrival of the police, which she is referring to, is1 2 3 at about mid-night which was after the recording of the F. I. R. Even otherwise, we are satisfied that in the circumstance of the case nothing turns on a contention of such technical nature.
14. The crucial evidence in the case is that of Mst. Sakeena Bibi who being the wife of the deceased and her house being close to the scene of offence is a natural witness. Her presence is not denied even by Naseer Ahmad, the injured P. W. She has mentioned the presence and participation of all the appellants. She is supported by Khair Din and Fakhar Hussain who belong to the locality and their presence is also not open to doubt even though their names have not been mentioned by Naseer Ahmad. As for Naseer Ahmad, his presence is not open to doubt because of the injuries on his person but it appears that he made concession in favour of Muhammad Sadiq and Muhammad Ashraf appellants. Learned counsel relied on Zarid Khan v.
Gulsher in which the ignoring of the testimony of a witness who had turned hostile was not approved and it was ruled that "the entire evidence of the witness should have been taken into consideration to see whether any part of his evidence was worthy of belief in the light of other evidence". In the present case, the evidence of Naseer Ahmad had not been ignored by the High Court but it had been held that he had deliberately made concession in favour of the two appellants and that in view of the positive evidence of Mst. Sakeena Bibi, reliability of which was beyond question, the participation of all the appellants notwithstanding the concession made by Naseer Ahmad, was to be believed. We see no reason to disagree. Even otherwise, there is corroboration available against all the appellants, except Muhammad Ashraf, by way of recovery of the blood- stained clothes and weapons. Against Ashraf, as also against others, there is evidence that he had disappeared from the village.
15. In these circumstances we find no merit in the appeals and accordingly dismiss the same. PLD 1972 SC 77 PLD 1976 SC 452 PLD 1979 SC 53 1972 SCMR 597