' ASLAM RIAZ 1.1USSAIN, J. - This appeal by leave of Court by Muhammad Iqbal appellant (complainant) is directed against the acquittal of Muhammad Tahir, Irshad Ahmad and Muhammad Ilyas (respondents I to 3 herein) and reduction of the sentence of Waheeduddin respondent No, 4, by the High Court vide the impingement from death to imprisonment for life, in a case under section 302/34, P. P. C.
2. The facts of the prosecution case, briefly stated, are as follows :- ' That Muhammad Iqbal Qureshi complainant and Muhammad Zaheer deceased (who was a Lecturer in the college at Tando Adam) were brothers inter se and lived together in the same house in Khalid Street Shandadpur (District Sangarh). Similarly Waheeduddin and Muhammad Tahir respondents are brothers inter se. They are cousins of Muhammad Iqbal (complainant as well as the deceased) and lived in the house adjacent to the house of the complainant. There is a window in the southern wall on the upper storey of the complainant's house, which opened towards the house of Waheeduddin respondent. On 7-4-1973 at 6 p.m., complainant Muhammad Iqbal went out for a stroll, while his younger brother Muhammad Zaheer (deceased) was present in the house.
When the complainant returned at about 10 p m. He was informed by Zaheer deceased that at about 6-15 p.m. He (Muhammad Zaheer) had gone upstairs to sprinkle water over the roof of the newly-constructed bath room when Waheeduddin respondent, who was standing in the courtyard of his house, asked him (Zaheer) to close the window of the upper storey as their privacy was being affected. While Muhammad Zaheer was still narrating the facts of incident to his brother Muhammad Iqbal, Waheeduddin respondent started abusing them and while doing so came to the door of the complainant's house and asked them to come outside. Accordingly, complainant Muhammad Iqbal and his brother Muhammad Zaheer came out of their house and found Waheeduddin and Muhammad Tahir respondents and their relatives Irshad Ahmad and Muhammad Ilyas (respondents) standing there. Waheeduddin and Muhammad Tahir were armed with knives, while the other two were empty handed. Muhammad Zaheer asked the accused not to abuse them, whereupon accused Irshad Ahmad and Muhammad Ilyas grappled with him, while Waheeduddin accused and Muhammad Tahir gave him knife blows on his chest and abdomen, on receiving which he fell down. Muhammad Iqbal complainant intervened and caught hold of Waheeduddin respondent, who also caused him injuries with knife on his head. Muhammad Tahir respondent also received injuries during the incident. The complainant raised cries of 'murder, murder' which attracted some persons including their uncle Zahoor Ahmad and their next door neighbour Mumtaz Bhatti P. W.
3. On seeing them, Irshad Ahmad and Muhammad Ilyas respondents ran away towards east while Waheeduddin and Muhammad Tahir respondents went into the house of Waheeduddin. The complainant narrated the incident to the persons who had come to the spot. As Muhammad Zaheer was badly injured, Zahoor Ahmad and Abdul Ghani P. Ws. Took him to the hospital.
' Shortly thereafter Samiullah S. H.
0. Police Station Shabdadpur, who was on patrol duty, arrived there with some constables. In the meantime, Zahoor Ahmad came back from the hospital and announced that Muhammad Zaheer had succumbed to his injuries in the hospital.
' Muhammad Iqbal complainant narrated the matter to the S. H. 0, who recorded his statement on the spot on a piece of plain paper which was sent to the P. S. Shandadpur for recording of the formal F. I. R. And registration of the case. He sent Muhammad Iqbal complainant (who was injured) to the hospital for medical examination and treatment. Thereafter, the S. H.
0. Visited the spot and secured blood-stained earth and some straw stained with blood. He then arrested Waheeduddin and Muhammad Tahir, accused/respondents and took into possession their blood-stained shirts and Shalwars. He also recovered one knife from each of the two accused.
The knife from Waheeduddin respondent was recovered at his pointing out, from behind 4 bags of wheat, in the verandah of his house. It was wrapped in a piece of cloth and was stained with blood.
Muhammad Tahir respondent led to the recovery of the blood-stained knife from a room of his house, where it was hidden under the 'rubbish of wood' lying in a corner of that room. A search was made of Muhammad Ilyas and Irshad Ahmad accused but they could not be found in their houses.
Subsequently, however, they surrendered themselves before the police.
' Post-mortem examination on the dead body of Muhammad Zaheer was performed by Dr. Faqir Hussain P. W. 5, Medical Superintendent Shandadpur Hospital, who found the following injuries on it :
(1) Incised wound 12" x 4" x abdomen deep on the interior wall of abdomen ; with prolapsed intestines outside.
(2) Stab wound 4' x 14" x chest cavity deep on right side of sternum cutting the right side of sternum.
(3) Incised wound 1" x 4" x skin deep on the posterial side. Of left forearm.
(4) Incised wound i" x r x skin deep on the lateral side of left forearm.
(5) Incised wound r x x skin deep on the lateral side of right wrist. On examination of Muhammad 'oat complainant the doctor found the following injuries on his person :-
(1) Incised wound 5 x 1' scalp deep on the right frontal region or the head.
(2) Incised wound 2" x x scalp deep on the left side of the back of the head behind the ear.
(3) Incised wound 1" x i" x skin deep on the back of the chest.
(4) Incised wound 4" x 4" x skin deep 2" away and above injury No, 3.
(5) Incised wound x skin deep 3" away and below injury No, 3.
' Muhammad Tahir accused respondent was also found to have sustained the following injuries :-
(1) Incised wound 14" x 4" x skin deep on the palmer surface of right hand near the root of thumb.
(2) Incised wound 1" x 4" x skin deep on the palmer side of the right hand.
(3) Incised wound 1" x r skin deep on the posterial side of left forearm.
3. At the trial the prosecution relied on the ocular testimony of Muhammad lqbal P. W. 1 (brother of the deceased), Zahoor Ahmad P. W. 2 and uncle of the deceased, and Mumtaz Bhatti P. W. 3 (a neighbour of the deceased). It also relied on the evidence of recovery of the blood-stained clothes of Waheeduddin and Muhammad Tahir respondents, as also the recovery of blood-stained knives at their instance ; the evidence of motive and the medical evidence.
4. In their statements under section 342, Cr. P. C. Muhammad Ilyas, Irshad Ahmad and Muhammad Tahir, respondents, pleaded innocence. Waheeduddin, however, admitted having stabbed Muhammad Zaheer to death but gave a different version of the incident. He stated that Muhammad Zaheer (deceased) had developed illicit relations with his sister as a result of which she became pregnant. He and his relations, therefore asked the deceased to marry her but he refused and he was, therefore, excommunicated from the brotherhood. The accused further stated that the deceased again developed illicit intimacy with another cousin, with whom he got married, but on account of disgrace attached to this marriage nobody from the brotherhood attended the marriage. According to him on the night of incident he was sitting in his house when he saw the deceased signalling his sister with an evil intention. He, therefore, lost control of himself ; picked up a knife lying in the house and came out of the house. The deceased also came out with a revolver and in that emotional state of mind he gave the deceased knife blows before he could fire at him.
By that time, complainant Muhammad Iqbal (brother of the deceased) came out of the house on hearing the noise and separated them dragging back his brother into the house. He stated further that he threw his knife at the spot and that the knife produced in Court was not the knife which had been foisted upon him by the police. He pleaded that he had caused injuries to the deceased due to grave and sudden provocation. According to him the other three co-accused had not participated in the incident.
5. Muhammad Tahir accused-respondent stated that he had come out of his house after hearing the noise and found Waheeduddin and Muhammad Iqbal complainant, grappling with each other.
He intervened and separated them during the course of which he received injuries on his hand.
' Irshad Ahmad and Muhammad Ilyas, accused-respondents showed total ignorance about the incident and pleaded that' they had been involved falsely.
6. The learned trial Court believed the prosecution evidence and convicted all the accused 'under section 302/34, P. P. C. For which it sentenced Waheeduddin and Muhammad Tahir to death, while Irshad Ahmad and Muhammad Ilyas were sentenced to imprisonment for life. They were also ordered to pay Rs, 1,000 as fine and, in default, to undergo R. I. For 2 months. All the four accused- respondents were also directed to pay Rs, 2,000 each as compensation to the heirs of the deceased or in default to suffer further 3 months' R. I. Waheeduddin and Muhammad Tahir respondents were also convicted under section 324/34, P. P. C. And were sentenced to 2 years' R. I.
' All of them filed an appeal before the High Court of Sind which acquitted lrshad Ahmad, Muhammad Tahir and Muhammad Ilyas but maintained the conviction of Waheeduddin respondent under section 302, P. P. C. It, however, reduced his sentence from death to imprisonment for life. The conviction and sentence of all the accused under section 324/34, P. P. C.
Was maintained.
7. Feeling aggrieved Muhammad Iqbal complainant filed a petition for leave to appeal (No, 13- K/82) before this Court against the acquittal of Muhammad Tahir, Irshad Ahmad and Muhammad Ilyas and for enhancement of the sentence of Waheeduddin respondent. Leave wasi granted on 20-12-1982 for re-examination of the evidence to see whether the well-established principles of appreciation of evidence in criminal cases, had been followed by the High Court while acquitting the three respondents! And reducing the sentence of the fourth above-mentioned accused.
8. We have heard the learned counsel for the parties at considerable length and have also gone through the judgments of the Courts below and the statements of the relevant witnesses.
' We notice that the learned High Court had acquitted Irshad Ahmad and Muhammad Ilyas because the only allegation against them was that of grappling with the deceased and no injury had been attributed to them.
' As for the eye-witnesses, the High Court noticed that Muhammad Iqbal and Zahoor Ahmad P. Ws.
Were related to the deceased while Mumtaz Bhatti P. W., was their neighbour who had admittedly not participated in funeral ceremony of the father of Waheeduddin respondent. From this it is presumed that he (Mumtaz Bhatti P. W.) was deeply associated with the complainant party.
Consequently, the High Court felt that all the eye-witnesses were interested and their testimony could not be believed without independent corroboratory evidence. It also took notice of the existence of deep-rooted enmity between Waheeduddin etc. (respondents) on the one side and Muhammad Zaheer (deceased) and his brother on the other and felt that there was some truth in the plea that the deceased had developed illicit relations with their sister. It, however, felt that the immediate cause of the incident was the construction raised by the complainant party on the top of their house and the presence of Muhammad Zaheer (deceased) on the roof on the fateful evening.
' While looking for corroboration the High Court found that the recovery of the blood-stained clothes of the accused were of no use inasmuch as Waheeduddin accused had admitted killing Muhammad Zaheer (deceased) while Muhammad Tahir respondent had stated that he had intervened in the incident with a view to separate the parties and that he had himself received some injuries in this process. As such the presence of blood on their clothes did not advance the prosecution case. As for the recovery of the blood-stained knives at the instance of Waheeduddin accused and Muhammad Tahir, the learned High Court believed the factum of recovery of these knives at their instance, but since the knives were received in the office of the Chemical Examiner on 8-8-1979, i,e,, after a delay of about 16 months, it did not rely upon these recoveries as a piece of corroboratory evidence.
' The motive which was held to have been proved was treated as corroboratory evidence only against Waheeduddin accused/convict.
' As for the injuries found on the person of Muhammad Tahir, the High Court relied on the statement of the doctor made during the cross-examination that it was possible that these had been sustained by him while separating Waheeduddin and the deceased and held that the injuries could not, therefore, serve as corroboratory evidence against Muhammad Tahir respondent. It finally held that since evidence of the eye-witnesses was not corroborated by any independent piece of evidence as against Irshad Ahmad, Muhammad Ilyas and Muhammad Tahir, respondents, their conviction could not be sustained. Consequently it acquitted them.
' As far as Waheeduddin accused is concerned it felt that the testimony of the eye-witnesses was not only corroborated by the evidence of motive, but also by his own admission. It, therefore, maintained- his conviction. But relying on his statement that the deceased had cultivated illicit liaison with their sister and on the day of occurrence he was signalling her with evil intention from the roof of his house, the High Court observed that although the above-mentioned fact was not sufficient to substantiate the plea of grave and sudden provocation, it did constitute a mitigating circumstance entitling him to the lesser sentence.
' As for Muhammad Tahir respondent No, 6 the only reason for his acquittal by the High Court was that according to the High Court there was no evidence to corroborate the testimony of the eye- witnesses qua him.
' As mentioned above the blood-stained knife was recovered at his instance which was found from a room of his house. The learned High Court, however, believed the factum of recovery of the knife but did not rely on it as corroboratory evidence because it reached the office of the Chemical Examiner after many months and as such, although blood on it was found to be of human origin, the learned High Court doubted the correctness of this portion of the evidence and did not treat the recovery of the knife as connecting the accused with the commission of offence.
We are, however, of the view, that in the circumstances of this case, even the mere recovery of the blood-stained knife was sufficient to corroborate the testimony of the eye-witnesses against him, in view of the fact that it was found concealed under a pile of rubbish in one of the rooms of Tahi respondent's house and he (Tahir) had exclusive knowledge as to where it was lying. Moreover, the result of the delay in examination of the knit' recovered at the instance of Tahir, respondent, by Chemical Examiner, because of its having reached him late, could only be that the blood on it may be found to have been disintegrated due to passage of time (thong it is not in this case). But this too, by itself is not sufficient to reject as corroboratory evidence.
' This view is supported by the case-law enunciated by this Court in The State v. Fateh Sher and others (1), where the blood-stained weapons of offence, namely a Kassi, a Dang and 3 hatchets were recovered from the accused but blood on some of them had disintegrated, this Court held that the fact that these implements which do not ordinarily bear stains of blood were found concealed by the accused unmistakably connected the said weapons with the crime in question which were, therefore, used as reliable evidence in the case to corroborate the testimony of the eye-witnesses.
' Similarly in Haji Ahmad v. The State (2) where blood-stained Sot as had been recovered from the accused but had not been relied upon by the High Court as corroboratory evidence because origin of the blood on them could not be ascertained. This Court observed that :- ' The trial Court was completely wrong in taking the view that because the origin of the blood on these Sot as could not be ascertained the recovery was useless................................................... s, ' It was held further by this Court that :- ' The actual recovery has not been doubted by the trial Court. In the circumstances, we do not see why it should not be accepted that the Sotas recovered at the instance of appellants
(1) PLD 1970 SC 491 (2) 1971 SCM R 326 Ahmad Khan and Hayat Khan were in fact, blood stained as certified by the Chemical Examiner and that this corroborated the evidence of the eye-witnesses that the deceased and Ghulam Rasul were hit by the Sotas."
' This view was based on an observation made by this Court in an earlier case i,e, Ghulam Rasul v.
Ali Akbar and others (1), where it did not accept the proposition that if the origin of the blood on the weapon of offence could not be ascertained due to disintegration by the time the weapon reaches the Chemical Examiner the recovery of the blood-stained weapon is of no use.
It may also be pointed out that no suggestion was made in the present case that the knife in question has been tampered with at any stage, either when it was in the custody of the police or that of the Chemical Examiner. Nor was the Investigating Officer or any other relevant witness cross-examined as to the reason for the delay in its reaching the office C of the Chemical Examiner. Therefore, in view of the observations of this Court in Sikandar and 2 others v. The State
(2) the recovery could have been used as corroborating the ocular testimony. Relevant portion of the judgment may be reproduced below :- "As in the case of Noor Alam, the evidence in the present case is that the articles found stained with blood were secured under a proper Mashirnama and properly sealed and there was not even a suggestion of any tampering. The Investigating Officer was also not cross-examined as to the delay in sending the parcels to the Chemical Examiner. The High Court was, therefore, not in error in relying on the recoveries as corroboration of the ocular evidence."
As a result we are of the opinion that the recovery of this knife (P. X) at the instance of Muhammad Tahir appellant constitutes sufficient corroboration of the testimony of the eye-witnesses qua him.
He, too, must, therefore be held guilty under section 302/34, P. P. C.
10. As far as Muhammad Ilyas and Irshad Ahmad are concerned we are of the view that they were rightly acquitted by the High Court for the reasons given by it in the impugned judgment and, as such, dismiss the complainant's appeal as against them.
11. As for Waheeduddin respondent it is urged by the complainant's counsel that his sentence under section 302/34, P. P. C. Should be enhanced to death.
We, however, feel that there is some truth in the plea taken by him (Waheeduddin) that Muhammad Zaheer (deceased) had developed illicit relations with his sister. We are also inclined to believe that by keeping a window in the newly-constructed portion of his (deceased's) house and by looking to the courtyard of the house of Waheeduddin the deceased had himself invited trouble. We are of the view that the immediate cause of the present occurrence was that the deceased was making gestures to the sister of the accused on the day of occurrence from the top of his roof. As a result we feel that Waheeduddin respondent was rightly awarded lesser sentence of imprisonment for life. We, therefore, maintain the same. However, after hearing his counsel, we enhance the sentence of fine award to him under section 545, Cr. P. C. From Rs, 2,000 to Rs, 20,000 which if recovered should be paid to the heirs of the deceased. In default he will suffer 3 years' further R. I.
(1) PLD 1965 SC 363 (2) PLD 1981 SC 477
12. For the same reasons as recorded in the preceding paragraph we are of the view that Muhammad Tahir respondent also deserves to be awarded the lesser sentence under section 302/34, P. P. C. As rich we sentence him to imprisonment for life under the said sections. He is also ordered to pay Rs, 10,000 as fine, which if recovered, should be paid to the heirs of the deceased as compensation under section 545, Cr. P. C. In default of payment of fine he shall undergo further 3 years' R. I.
13. The result of the above discussion is that the appeal is partly allowed with the above modifications in sentences and fine.