' MUHAMMAD MUNIR KHAN, J.--The two Criminal Appeals No,564/81, 565/81 and the Murder Reference No,58/82 arise from the judgment of learned Additional Sessions Judge, Kasur, whereby he on 4-10-1981 convicted Muhammad Hussain appellant aged 26 years, under sections 302 and 307, P.P.C. And section 13 of the Arms Ordinance, 1965 for causing the death of Muhammad Rashid, murderous assault on Qudrat Ullah P.W.7. And possession of unlicensed fire-arm and sentenced him as under:-
(1) Under section 302, P.P.C. To death and a fine of Rs,2,000, in default whereof R.I. For one year.
(2) Under section 307, P.P.C. To 10 years' R.I. And a fine of Rs,1,000 in default whereof 6 months' R.I.
(3) Under section 13 of the Arms Ordinance, 1965 to 11 years' R.I.
' We propose to dispose of the two appeals and the Murder Reference through single judgment.
2. The occurrence took place on 30-9-1980 at 7-00 p.m. Near Akhtar Tannery in Mohallah Khatikan of City Kasur. The F.I.R. Exh.P.B. Is statement of Qudrat Ullah P.W.7 recorded in the Hospital at 8.30 p.m. On the same day by Shamas-ud-Din S.I., P.W.9. On the basis of this statement, formal F.I.R.
Exh.PB/1 was registered at P.S. Kasur City by Muhammad Siddiq, Muharrir Head Constable, P.W.3 on the same day at 8.37 p.m. The distance between the place of occurrence and the police station is 4/5 furlong.
3. The motive as alleged by the prosecution was that on 7-7-1980 ,Muhammad Rashid deceased had lodged report under sections 324/336/ 148/149, P.P.C. Against Muhammad Hussain appellant, his two brothers and others for causing injuries to him and one Muhammad Ashraf. The appellant became annoyed over the registration of that case.
4. As far the main occurrence, it has been stated that on the eventful day Qudrat Ullah P.W.7 and Muhammad Rashid deceased were returning from Majestic Cinema after enjoying show and when they reached near Akhtar Tannery, Mohallah Khatikan, the appellant Muhammad Hussain came in front of them. He took out 'Churra' from the folds of his Shalwar and while raising 'Lalkara', he stabbed Muhammad Rashid who fell down on the ground. The appellant gave more Churra blows on the person of Muhammad Rashid when he was lying on the ground and that when Qudrat Ullah P.W.7 tried to intervene, the appellant also inflicted Churra blow on his chest. The appellant then made good his escape taking away Churra with him. According to the F.I.R., the occurrence was also seen by Meraj Din and Allah Ditta. Muhammad Rashid deceased and Qudrat Ullah were removed to Civil Hospital Kasur. Muhammad Rashid succumbed to the injuries on reaching the Hospital. Qudrat Ullah was medically examined by the doctor. Having received information of the incident Shamas-ud-Din, S.I. Rushed to the hospital. When he was on the gate of the hospital, he received medico-legal report Exh.P.E. Of Qudrat Ullah P.W. And death certificate Exh.P.9/1 of Muhammad Rashid deceased. He then, came to Qudrat Ullah who was present in the hospital in injured condition and after seeking the certificate of the fitness of Qudrat Ullah to make statement, he recorded his statement Exh.P.B. And sent the same to Police Station City, Kasur for the registration of formal F.I.R.
5. Dr. Sadiq Hussain Naqvi, P.W.5 conducted post-mortem examination on the dead body of Muhammad Rashid deceased. He found 3 stab wounds on the back of chest, one stab wound on the left side of abdomen and one incised wound on front of the upper part of right arm. The abdominal wall was cut at left hypo condrial area and right renal area posteriorly. The stomach was found empty.
' In his opinion, the death was due to shock and servere internal and external haemorrhage due to injuries on the back of chest which were sufficient to cause death in the ordinary course of nature.
The time between injuries and death was 15 to 30 minutes and between death and post-mortem was within 24 hours.
' On the same day at 7.30 p.m., the doctor had examined Qudrat Ullah P.W. And found the following injury on his body.
"A stab wound on front of left side chest 11/2" below the mid of clavical bone size 3 c.m. In to 11 c.m.
In to depth could not be measured due to vital area. Correspondent cut was present on the shirt and Bunian. General condition of the patient injured was in a state of shock with severe bleeding, semi-unconscious with low blood pressure and feeble pulse."
' The doctor opined that the injury was fresh, grievous and caused by sharp-edged weapon.
6. On 4.10.1980, Shamas-ud-Din, S.I., P.W.9 arrested the appellant from garden. On search of his person blood-stained Churra Ex.P3 was recovered from the folds of Shalwar. Finding blood-stains on the clothes of the appellant, the S.I., removed blood-stained shirt Exh.P.4 and Exh.P.5 from his person. Churra Exh.P.3 was taken into possession vide memo. Exh.P.G. Shirt Exh.P.4 and Shalwar Exh.P.5 were taken into possession vide memo. Exh. P.F. Churra and clothes were sealed into parcel.
7. To prove its case prosecution examined 9 witnesses. Qudrat Ullah P.W.7 gave the ocular account of the occurrence. He stated that at the eventful time, he was returning from Majestic Cinema and that within his view Muhammad Hussain appellant after bringing out Churra from the Nepha of his Shalwar, stabbed Muhammad Rashid who fell down on the ground and that Muhammad Hussain gave more blows on the back of chest of the deceased and when he, the witness, stepped forward to apprehend the appellant, he was also injured with Churra by him. Muhammad Latif P.W.8 stated that the appellant was arrested in his presence. He was wearing blood-stained shirt Exh.P.4 and Shalwar Exh.P.5 which were removed from his person by the police. The witness also stated that blood-stained Churra Exh.P.3 was recovered from the Nepha of the Shalwar of the appellant.
Shamas-ud-Din, S.I., P.W.9 recorded the F.I.R., got post-mortem examination of the dead body, arrested the accused/appellant, effected recoveries from him and submitted the challan. The learned trial Court examined Muhammad Shafi, A.S.I., C.W.1, who stated that on 7-7-1980 while posted in Police post No,2, P.S. City Kasur, he had recorded the statement of Muhammad Rashid deceased which was sent to P.S. City Kasur for the registration of case under sections 324/336/148/149, P.P.C. Against Muhammad Hussain appellant and others. Copy of the F.I.R. Is Exh.C.W.1/1.
8. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. In answer to question, as to why the case against him? He stated:- "The sister of Qudrat Ullah P.W. Was caught red-handed in compromising position with Muhammad Rasheed deceased in my presence by Boota P.C. a month before the murder of deceased Muhammad Rasheed. Some persons intervened. Sister of Qudrat Ullah P.W. Was sent back."
' In defence he did not produce any evidence. After the examination of the Court witness, the appellant was re-examined. He denied to have given beating to Muhammad Rashid deceased on 7-7-1980. He, however, admitted the registration of case under sections 324/336/148/149, P.P.C.
Against him and others and the submission of challan against them. In defence he tendered judgment of the Magistrate, whereby Muhammad Rashid was convicted under section 411, P.P.C. On 18-11-1976.
9. The learned trial t uurt believing the motive, ocular evidence and the recovery of blood-stained Churra Exh.P.3, Shirt Exh.P.4 bloodstained Shalwar Exh.P.5, recorded the conviction of the appellant.
10. Learned counsel for the appellant contended that Qudrat Ullah is not a reliable witness; that the prosecution having not produced Meraj Din and Allah Ditta, the eye-witnesses, the statutory presumption under section 114 of the Evidence Act, be drawn against them; that the recoveries are fake and that, in the circumstances of the case, it would be unsafe to sustain conviction on the uncorroborated testimony of Qudrat Ullah P.W. On the other hand, the learned counsel for State supported the judgment of the trial Court.
11. We have considered the contentions raised by the learned counsel for the parties and arguments addressed to substantiate the same. We find that it is a case of prompt F.I.R. And that Exh.P.B., i,e, the statement of Qudrat Ullah recorded in the hospital is a genuine document. There is nothing on record to show that the same was not written at the time and face as it purports. The name of the appellant, the weapon used by him and the manner in which he caused injuries to the deceased and Qudrat Ullah P.W. Are given therein. As far motive, we find that there is documentary evidence Exh.C.W.1/1, copy of the F.I.R. Lodged by Muhammad Rashid deceased against Muhammad Hussain appellant and others under sections 324/336/148/149, P.P.C. Abou. Three months before the present occurrence, and as such, the appellant having become annoyed of the lodging of the case against him by the deceased had a motive to harm the deceased. So far as the recovery of bloodstained Churra Exh.P.3 and blood-stained clothes at the time of arrest of the appellant are concerned, we feel inclined to exclude this piece of evidence from consideration on the ground that the conduct of the appellant of having worn blood-stained clothes for 5 days and of keeping blood-stained Churra in the folds of his Shalwar, runs counter to the natural probabilities.
12. This brings us to the main evidence, i,e, the ocular evidence given by Qudrat Ullah P.W. We would like to appreciate his evidence in the light of the guiding principles laid down by the Honourable Supreme Court in case titled Niaz v. The State reported as PLD 1960 SC (Pak.) 387, that:- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who set up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony."
Having considered the first question, i,e, whether in fact the witness saw the occurrence and was in a position to identify the culprit, we find that by the fact of grievous injury on his person, the presence of Qudrat Ullah at the time of occurrence is very much established. Qudrat Ullah and the appellant were previously known to each other. The injury having been inflicted with Churra on the front of the chest, the culprit must have been face to face and very close to the witness. The witness was thus in a position to identify the offender. Reverting to the further question, whether Qudrat Ullah can be relied upon for convicting the appellant without corroboration, we find that Qudrat Ullah is a quite independent witness. He had no ill-will against the appellant. The learned counsel has failed to point out any inherent infirmity in his statement. He has successfully stood the test of cross-examination. His evidence does not suffer from major contradictions, material discrepancies and dishonest improvements. He has charged one person only with the commission of the offence. The number of the injuries found on the person of the deceased and the number of the accused do commensurate. The appellant has not been able to lay down any concrete foundation for the substitution of the appellant for real culprit. The statement of the witness is in consonance with probabilities and materially fits in with other evidence and the circumstances of the case. It has inspired confidence of truth in our mind. To us, he is an absolutely dependable witness. The eminent jurists have classified the ocular testimony into three categories:-
(i) Wholly reliable,
(ii) Wholly unreliable,
(iii) Partly reliable, and Partly not reliable.
' In first category of proof, conviction may safely be sustained on uncorroborated testimony. In the second category even strongest corroboration may not rehabilitate such evidence and it is the third category which requires corroboration in material particulars. We are of the view that the testimony of Qudrat Ullah falls within first category and conviction can safely be upheld on his statement alone. Despite this observation relatable to the credibility of Qudrat Ullah, if prudence still requires corroboration, the same is also available in the shape of F.I.R. (which can be used to corroborate its maker i,e, Qudrat Ullah, complainant) and the motive. The non-production of the two eye-witnesses Meraj Din and Allah Ditta named in the F.I.R. Is thus not fatal to the prosecution in the peculiar circumstances of the case. It is remarkable that the appellant also did not care and dare to produce them in defence. The prosecution is not bound to produce the witnesses about whom it considers that they have been won over by the accused. It may be noted that Qudrat Ullah P.W. Was not confronted in accordance with the provision of section 145 of the Evidence Act with that part of the F.I.R. Wherein he stated that Meraj Din and Allah Ditta had witnessed the occurrence. The suggestions made to Qudrat Ullah P.W. That his sister was caught red-handed with Muhammad Rashid deceased by Muhammad Boota F.C. And that witness and the deceased had injured each other, were denied by him. The appellant has failed to prove the suggestions.
Muhammad Boota F.C. Has not been produced by him. In view of the nature and number of the injuries on the person of the deceased and Qudrat Ullah P.W., the suggestion that they injured each H other, appears to be rediculous. For all these reasons, the submissions made by the learned counsel for the appellant do not make out a case of acquittal. We do not see any mitigating/extenuating circumstances in favour of the appellant for lesser punishment.
13. For what has been stated above, we are convinced that the appellant has rightly been convicted and sentenced. Appeal No, 564/81 is, therefore, dismissed.
The death sentence is confirmed.
14. Since we have disbelieved the recovery of Chhura Exh.P.3 from the appellant, therefore, Appeal No,565/81 is accepted and in case under section 13 of the Arms Ordinance, 1965, the appellant is acquitted of the charge.
' Death setence confirmed.