' IJAZ NISAR, J.-Muhammad Yousaf alias Babu (34) has been convicted under section 302, P. P. C.
For the murder of Latif deceased (26/28) by the learned Additional Sessions Judge, Lahore on 21st July, 1980 and sentenced to death and a fine of Rs, 5,000 or in default to undergo 2 years, R. I. Half of the fine was ordered to be paid to the heirs of the deceased as compensation.
' The connected murder reference and the appeal are before us.
2. In the year 1974 Allah Bakhsh father of the appellant was murdered for which brothers and father of the deceased were challaned and acquitted. According to the prosecution the appellant and his brothers were on the look out for some opportune moment as so to avenge the murder of their father.
' On 26th March, 1979 Latif deceased alongwith Shaukat P. W. 5 and Labha P. W. 6 had gone to Sheesh Mahal Cinema, Shama Road, Lahore for seeing matinee show of film "Mogabala". The lights went off at about 6-15 p. m. Whereupon the deceased and other persons came out. In the meantime, the appellant accompanied by his brothers Shaukat, Muhammad Ali one Tariq alias Tari (absconder) came there. Muhammad Ali was armed with a pistol while the others had carbines. All the accused including the appellant resorted to indiscriminate firing on the deceased.
He walked upto the Cinema Canteen, fell down near the counter and died immediately. The appellant and his companions fled away with their respective weapons.
' S.-I. Muhammad Alam P. W. 10 who was on patrol duty reached the spot at about 7. p. m. He recorded the statement Exh. P. C. Of Shaukat P. W. And sent it to the Police Station for formal registration of the case. He prepared the injury statement Exh. P. L. And the inquest report Exh. P. M.
Of the deceased. He also recovered counterfoil of Cinema Ticket P. 8 alongwith other personal belongings on the search of the deceased. .Blood-stained earth was recovered from three crime empties Exh. P. 5/1-3 were also secured through memo. Exh. P. D.
3. Shaukat accused was arrested on 30th March, 1979, Muhammad Ali accused was arrested on 2nd April, 1979 while the appellant was arrested on 28th April, 1979. On the search of the appellant carbine P. 12 loaded with 5 live cartridges was recovered from the nefa of his shalwar through memo. Exh. P. K.
4. The carbine P. 12 and the crime empties recovered from the spot were sent to the Forensic Science Laboratory and one of the empties was found to have been fired from the said carbine.
5. Dr. Sabir All P. W. 7 conducted autopsy on the dead body of Latif (26/28) on 27th March, 1979 at 1- 30 p. m. And found the following injuries :-
(1) An abrasion:31 x 1 c.m. Just above the left eye-brow.
(2) An abrasion 3 X 11 c.m. Below and outer to the left eye.
(3) Firearm wounds of entrance 5 in number each, 1 c.m. Circular having abrasion in between 4 cm x 3 c.m. These wounds were placed on the out top right shoulder in area 8 x 8 c.m.
(4) An abrasion 5 x 11 cm in between the right shoulder joint and chest terminating into a circular wound 1 x 1 c.m. Going deep in the chest. There was another wound 3 c.m. Medial to the above- mentioned wound placed on the front of right upper chest going deep and was 1 c.m. Circular.
There-was an abrasion 3 cm below this deep wound and was 11 x 1 c.m. The injuries Nos. 3 and 4.
Were the result of one shot.
(5) An abrasion 2x 1 c.m. Front right chest 8 inches above the nipple at 2 O'clock.
(6) An abrasion 2 x 2 c.m. Inner end and left collar bone.
(7) Three fire-arm wounds of entry with an abrasion 2 cm. x 1 c.m. And two exist wound each wounds 1 cm circular, in areas 12 x 12 c.m. Front mid upper abdomen. The wound 'A' had gone deep.
The other two that is B and C had their exit E and D 5 cm lateral to the entries (as depicted in the sketch).
(8) Fire-arm wound of entry on the front upper end of the left arm 2 cm x 1 cm which had its exit 2 x 1/2 c.m. On the outer front upper half of the left arm, both are communicating under the skin may be the result of injuries Nos. 3 and 4.
(9) An abrasion 1 x 1 c.m. Front outer lower half left arm.
(10) Fire-arm wound of entry outer front upper and of the left forearm 1 cm circular pellet was found lying the skin 4 cm. Above and in line wound of entry.
(11) Fire-arm wound of entry 1 c.m. Circular back of inner left forearm in a upper half. Pellet was found just below the elbow joint under the skin.
(12) Six fire-arm wounds of entries on the front lower half of the left forearm in area 9 x 6 cm each 1 cm circular, exit wound 6 in number on the back lower half of the left forearm size ranging from 1 to 2 cm. There was fracture of radius.
(13) Fire-arm wound of entry 11 x 11 c.m. Just medial to the upper border of the left scapula.
(14) Fire-arm wound of entry 1.5 c.m. x 1 cm on the left leg below the knee joint outer front communicating with its exist 11 x 1 c.m. On the medial side 3 cm apart from each other.
(15) An abrasion 4 x 1 cm front mid left thigh.
(16) Fire-arms wound of entry 1/2 cm circular back of the right chest near the outer border of scapula in line with armpit going deep.
' A pellet was found embeded in the left flank of abdomen. Two bullets were recovered from the body of the deceased.
' All the injuries were caused with fire-arms and were ante-mortem. Injuries Nos. 3, 7 and 16 which were caused by fire-arm were individually sufficient to cause death. The death was due to shock and haemorrhage. The probable time between injuries and death was immediate and that between death and post-mortem about one day.
6. The appellant and his co-accused pleaded not guilty to the charge and denied the prosecution allegations. They stated that they had been involved due to enmity because they had appeared as witnesses against the father and brothers of the deceased in the murder case of their father. The appellant stated that he had been arrested by the police on the next day of occurrence and that the carbine had been planted on him to strengthen the prosecution case. He also attributed the case to enmity.
' No evidence was called in defence.
7. The prosecution case rests on the evidence of Muhammad Shaukat P. W. 4 who furnished the ocular account, S.-I. Muhammad Alam P. W. 10, who secured crime empties from the spot through memo. Exh. P. D. Attested by Shaukat and Labha P. Ws. And Shafqaat Ahmad S. I., P. W. 9 who arrested the appellant and recovered from his possession loaded carbine. Labha P. W. 6 did not support the prosecution and was declared hostile. Relying upon the testimony of Shaukat P. W. 5 and the recovery of carbine P. 12 and its matching with one of the crime empties recovered from the spot, the learned trial Court convicted and sentenced the appellant as stated above. He, however, acquitted Shaukat and Muhammad Ali accused by giving them the benefit of doubt as according to the learned trial Court no corroborative evidence was available against them.
8. Impugning the judgment of the trial Court, the learned counsel for the appellant states that there has been complete misreading of the prosecution evidence. He contends that the testimony of Shaukat P. W. Being a solitary eye-witness and belonging to the family of the deceased should not have been acted upon without any corroboration. He has also assailed the recovery of the carbine from the appellant and its matching with the crime empty on the ground that no public witness has been produced to prove the recovery and further that the crime empties allegedly recovered from the spot were kept in the Police Station till the alleged recovery of the carbine that both were sent together to the Forensic Science Laboratory which casts a grave doubt on the genuineness of this circumstance.
' The question whether Shaukat P. W. Can be termed as an interested witness has been examined by us. He admitted that the deceased apart from belonging to his fraternity was his friend also and that there had been inter marriages between his family and that of the deceased. There is nothing in the record to suggest that he had any grievance or grouse against the appellant or any motive to falsely implicate him. Mere friendship of a witness or his belonging to the same fraternity are per se no reasons to discard the testimony of a witness. Shaukat P. W. Is a natural witness because he had accompanied the deceased to the cinema house where the occurrence had taken place. He was subjected to lengthy cross-examination but he stood the test and his evidence remained unshattered. He stands fully corroborated by the medical evidence. The motive as stated by him is appealing and fits in with the prosecution case. The appellant and his relatives were likely to nurse a grudge against the deceased and his family over the murder of their father. The F. I. R. Was lodged very promptly setting forth all the necessary details. In these circumstances, we find no reason to doubt the testimony of Shaukat P. W. He is an independent and reliable witness and we do not agree with the finding of the learned trial Court that some additional corroboration was required of his testimony. As regards the contention of the learned counsel that since Labha P. W.
Has not supported the prosecution it would be unsafe to base conviction upon the solitary statement of Shaukat P. W. We do not find any force in it. The learned trial Court has not declared him to be an untruthful witness or disbelieved him altogether. Being a solitary witness to the occurrence the Court by way of abundant caution wanted some corroboration of his testimony which according to us was not in the circumstances discussed above required in this case.
The legislature has not insisted upon laying down any such exception to the general rule recognized in section 134 of the Evidence Act that no particular number of witnesses is required to prove a fact. It is not seldom a 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 Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.
' The recovery of carbine from the appellant has been assailed on the ground that it does not stand satisfactorily connected with the crime empties because no evidence has been led by the prosecution to show that the parcels containing crime empties and that of the carbine were sent separately to the Forensic Science Laboratory. On the contrary, the evidence of Faizur-Rehman, A.
S.-I. P. W. 8 shows that both the parcels were delivered together to Muhammad Arif F. C. For their taking to the Forensic Science Laboratory. The crime empties were recovered on 26th March, 1979 and in the absence of any reasonable explanation for their late despatch to the Forensic Science Laboratory it is difficult to place any implicit reliance on their matching with the carbine recovered about month after their seizure. No plausible excuse has been offered by the prosecution in this behalf. We do not, therefore, treat this circumstance as of any avail to the prosecution.
9. As already stated above, we think that the evidence of Shaukat P. W. Alone is sufficient to bring home the guilt to the appellant. The prosecution case, therefore, stands established against the appellant and he has been rightly convicted.
10. Since it is the prosecution's own case that Younis a real brother of the deceased had abducted Mst. Rani sister of the appellant which later culminated into the murder of the appellant's father namely Allah Bakhsh we, therefore, cansider that the ends of justice will be met if the appellant is awarded the lesser penalty provided for the offence of murder and accordingly alter his sentence from death to life imprisonment but, however, maintain the sentence of fine.
' With this modification, the appeal stands dismissed. The murder reference and the appeal are disposed of.
' The death sentence is not confirmed.