ZAFFAR HUSSAIN MIRZA, J.--Muhammad Rashid (appellant in criminal appeal No.68/1982) was tried alongwith co-accused Din Muhammad and his son Muhammad Nazir, under sections 452, 302, read with section 34, P.P.C., for criminal trespass into the house of Muhammad Maskeen and committing his murder. The Additional Sessions Judge, Rawalpindi, who tried the accused, gave benefit of doubt to accused Din Muhammad and acquitted him. However, he found the case proved against Muhammad Rashid and Muhammad Nazir who were convicted and sentenced each to life imprisonment and fine of Rs.5,000, under sections 302/34, P.P.C and one year's R.I. Under sections 354/34, P.P.C.
2. Both convicts challenged their convictions and the complainant Mst. Sadiq Jan filed a revision application praying for setting aside the acquittal of accused Din Muhammad and for substituting the sentences awarded to the to convicts into capital punishment. A learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, who heard the cases together dismissed the revision application of Mst. Sadiq Jan and accepted the appeal fn respect of accused Muhammad Nazir, acquitting him of all the charges but maintained the convictions and sentences imposed on appellant Muhammad Rashid vide judgment dated 15-4-1981
3. Mst. Sadiq Jan (appellant in criminal appeal No. 67/82) then came up before this Court against the dismissal of her revision, as well as against the order of acquittal in respect of Muhammad Nazir, whereas. Muhammad Rashid sought leave to appeal against his conviction and sentence maintained by the High Court. This Court declined to interfere with the acquittal of Din Muhammad and refused leave to appeal in that regard, on the ground that the trial Court as well as the High Court had concurrently held that his participation in the crime was open to doubt. However, leave was granted to consider "whether the acquittal of Muhammad Nazir accused is in consonance with the well-settled principles governing safe administration of criminal justice." As the case was being re-examined in this respect leave was granted in the petition filed by Muhammad Rashid also.
4. The occurrence took place on 28-2-1975, at 7.30 p.m. In the house of Muhammad Maskeen deceased et Dhoke Ellahi Bux, Rawalpindi. Muhammad Rashid and Muhammad Nazir armed with knives alongwith Din Muhammad who was empty-handed entered the house of the deceased. The latter was sitting on a cot and the assail was opened by a knife blow by Muhammad Rashid as a result of which the deceased fell flat on the cot, where after Muhammad Nazir and Muhammad Rashid both inflicted knives blows to the deceased. Having inflicted multiple injuries upon the deceased the culprits fled from the scene. The prosecution case was supported by to witnesses, namely, Mst. Sadiq Jan P.W., the wife of the deceased and Munawar Din the brother of the deceased. Nothing incriminating is said to have been recovered from the scene of the occurrence except blood-stained earth underneath the cot where the deceased was done to death. The recovery of blood-stained knives in consequences to information received from Muhammad Rashid while in custody of the police has been disbelieved by the High Court and is, therefore, of no consequence. Accordingly the case of the prosecution rests entirely on the ocular testimony of the aforesaid to witnesses and the medical evidence. Dr. Muhammad Siddique, Medical Officer, D.H.Q.
Hospital, Rawalpindi, who conducted the post-mortem examination of the deceased found the following injuries on the dead body:-
(1) A vertical stab incised wound 2 -- " x 1-3/4 " x deep into the chest cavity. The lung had come out of the wound, one right side of chest upper part 4" from the nipple and 1 -- " from the midstermal line at 2-00 O'clock position.
(2) A transversed stab incised wound 1-3/4" x 3/4" deep into the cavity on left side of chest front outer part 3 -- " below the clavical bone.
(3) A vertical stab incised wound on front of chest left side 1" x 1/3" x deep into the cavity 1 -- " above the nipple and at 12.00 O'clock position.
(4) A vertical stab incised wound 1-1/2 " x 3/4" deep into the cavity on left side of front of chest lateral aspect 2-1/3" from nipple at 4.00 O'clock position.
(5) The stab incised wounds in a bifoliate shape one wound was 2" x -- " and other 1 -- " x 1 --" on lower part of front chest and upper part of abdomen left side front omentum and cavity deep.
(6) A vertical stab incised wound 3 -- " x 1 -- " through the wound, the coils of intestines had come out, left side of abdomen flank, middle at the level of umbilicus and 6 -- " from it.
(7) A stab incised wound can front lower part of abdomen left side 2" x 1 --" through the wound, the coils of intestines have come out. It was 2" from the umbilicus.
(8) A vertical incised wound 4 -- " x 1 -- " x 3" muscle deep on front inner part of left thigh middle.
(9) Incised wound 1" x ?" on middle outer part of left thigh.
(10) Two small abrasions on lower part of right leg."
5. The motive for the crime was that about a year before the occurrence in this case, Muhammad Rashid's father had been murdered. Muhammad Maskeen deceased, his brother Munawar Din P.W.
And four others were charged with this murder and were facing trial in the Court of law. The deceased and Munawar Din P.W. Had been enlarged on bail. In order to avenge the murder of his father, Muhammad Rashid and his to companion, namely, Din Muhammad, who is his father's sister's husband and Muhammad Nazir son of Din Muhammad killed the deceased.
6. Although the trial Court had found the testimony of the to eye-witnesses as reliable and trustworthy, the High Court came to the conclusion that it was not safe to rely on the testimony of Munawar Din P.W. And discarded the same, placing reliance on Mst. Sadiq Jan for upholding the conviction of Muhammad Rashid. In discarding the evidence of Munawar Din P.W. The learned Judge of the High Court observed that circumstances showed that his presence at the the of the occurrence was improbable and also that he had made improvements which discredited his testimony. In regard to the first the learned Judge observed that the witness being 29 years old was normally expected to be a family man whereas there was no mention of the presence of his wife in the house of the deceased. The implication was that this witness was living separately. This inference seems to us to be not founded upon anything in the evidence and is apparently purely speculative. There is nothing on the record to show or even to suggest that Munawar Din was living separately in another house. According to the version of this witness with the accused were inflicting knife blows to the deceased, he tried to save the deceased by imploring the assailants to spare him. On this on the contrary Muhammad Rashid asked his companion not to spare the witness as well. It was, therefore, that the witness rushed to the other room of the house and bolted himself inside for fear of his life. The learned Judge, having regard to this version of the witness observed that in these circumstances he could not have seen what had happened. Although the witness did not state that he immediately went into the other room, it is natural for him to have seen the culprits and as appears from the evidence the main target of the assailant was the deceased, he could have seen the first few blows which must have been inflicted in quick succession to the deceased. At any rate his evidence established the presence of the accused armed with weapon at the psychological moment which has corroborated value in support of the testimony of Mst. Sadiq Jan. As the improvements and contradictions the learned Judge referred to the deposition of this witness in which he stated that Mst. Sadiq Jan was churning milk, which was considered highly unlikely in the evening hours and that Mat. Sadiq Jan had snatched Muhammad Rashid's Chaddar which had not been produced before the police. We do not find anything extraordinary in these circumstances which could reflect so adversely on the testimony of this witness as to rob it of all values. Munawar Din P.W. Was believed by the trial Court as truthful witness and in our view he was a natural witness whose testimony was not liable to be brushed aside on the grounds stated above. Normally he being the brother of the deceased and specially in absence of any contrary indication in the evidence, Munawar Din---s presence at the the of occurrence seems to us to be natural consistent with all the circumstances; and, therefore, we regret our inability to agree with the evaluation of his evidence by the High Court.
7. As to the other witness Mst. Sadiq Jan, both the Courts below have come to the conclusion and rightly so that she was a natural witness, being the wife of the deceased and the occurrence having taken place in their house. The contention that certain contradictions in her evidence make her presence doubtful does not appear to us to be well-founded. No reason has been given why she would not be present in the house at t1hat hour of the day. She, as stated that she, her husband the deceased and Munawar Din had taken their meals about five minutes prior to the occurrence which fact is confirmed by the medical evidence which shows presence of undigested food in the stomach of the deceased. Much emphasis was laid on her statement that although she had given information to the police at the Committee Chowk, it was reduced into writing at the spot. From this it was urged that the report was recorded after some investigation by the Investigating Officer.
However, it is significant that the witness had also stated that her thumb-impression was taken at the Committee Chok. Muhammad Aslam, S.H.O., has also emphatically denied a similar suggestion.
It, therefore, appears to us that the report was taken down at the Committee Chowk and the minor discrepancy may on account of the witness being an illiterate woman. She had categorically denied the suggestion that the first report was recorded after deliberation at the spot. The statement of Mst. Sadiq Jan is free from any other infirmity and has largely gone unimpeached.
Although her husband was accused of the murder of appellant Muhammad Rashid's father, she had not direct animus against the accused and there is nothing to detract from intrinsic worth of her testimony. It appears to us from the surrounding circumstances on record that upon the assault being launched on the deceased Munawar Din P.W. Went into the room to save himself and remained there until the arrival of the police for the fear of his life. Nevertheless the testimony of Mst. Sadiq Jan P.W. Coupled with the 'evidence of Munawar Din P.W. Establishing presence of the accused and initial stage of assault on the deceased, is sufficient in our view to prove the prosecution case to the hilt.
8. The High Court acquitted accused Muhammad Nazir on three grounds; firstly on the ground that no recovery of any incriminating articles was alleged having been made from him although he was arrested on the next day, secondly that he had no direct motive for killing the deceased and lastly the nature of injuries sustained by the deceased indicated that it was the work of a single individual, because all the injuries were left side of the body in the front. We are unable to agree with this reasoning of the High Court. The question of recovery is of no significance in the face of positive and direct evidence from witnesses whose testimony has been accepted in regard to the main culprit, namely, Muhammad Rashid. It is well-established that even the testimony of an interested witness if found intrinsically free from infirmity can sustain conviction: The occurrence having taken place inside the house of the deceased it was not expected that outsiders would be present to witness the crime. In any case there apparently was strong motive so far as Muhammad Rashid is concerned and Muhammad Nazir being his relative and admittedly a strong supporter also can be said to be sharing the same motive. The evidence of motive, therefore, furnished sufficient corroboration to the ocular testimony against accused Muhammad Nazir. As regards the nature and location of the injuries, we feel that the same does not exclude the participation of to assailants. All the injuries are not located on the left side of the body and the number of injuries is also consistent with the work of to persons. There appears to us, therefore, no valid ground to hold that the participation of Muhammad Nazir in the crime is open to doubt. For all these reasons, we have come to the conclusion that the prosecution evidence is sufficient to prove the case against both appellants Muhammad Rashid as well as acquitted accused Muhammad Nazir.
9. In the result the appeal of Mst. Sadiq Jan (criminal appeal No.67 of 1982) is allowed and convictions and sentences imposed upon accused Muhammad Nazir by the trial Court are restored. The appeal of Muhammad Rashid (criminal appeal No.68/1982) is dismissed.