' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 77 of 1982, the connected Murder Reference No, 1 of 1983 and Criminal Revision No, 5 of 1983 filed by the complainant for the enhancement of sentence arise from the judgment of the learned Sessions Judge, Bahawalpur whereby, he, on 14- 12-1982 convicted Noor Muhammad, aged 22 years and Nazir Ahmad, aged 36 years, the appellants, under section 302, P.P.C. And section 307/34, P.P.C. For causing the death of Muhammad Tufail and murderous assault on Muhammad lqbal P.W.8 and sentenced them as under:- ' Noor Muhammad:
(i) Under section 302, P.P.C. To death and a fine of Rs,5,000 in default thereof three years' R.I. With the direction that the fine when recovered be paid as compensation under section 554-A, Cr.P.C.
To the legal heirs of the deceased;
(ii) Under section 307/34, P.P.C. To three years' R.I. And a fine of Rs,1,000 in default thereof to six months' R.I. With the direction that the fine when recovered be paid to Muhammad lqbal P.W.8 as compensation; ' Nazir Ahmad:
(i) Under section 307/34, P.P.C. To three years' R.I. And a fine of Rs,1,000 in default thereof to six months' R.I. With the direction that the fine when recovered be paid as compensation to Muhammad Iqbal P.W.B.
2. The occurrence took place on 4-3-1981 at 7-00 p.m. In the lane of Muhajar Colony, Bahawalpur within the limits of Police Station, Civil Lines, Bahawalpur. The distance between the place of occurrence and the Police Station is one mile. The F.I.R. Exh. P.C. Was lodged by Nawab Din paternal-uncle of Muhammad Tufail at 7.30 p.m. On the same day and was recorded by Qadir Bakhsh, Sub-Inspector P.W.12.
3. The prosecution case briefly was that a day before the occurrence,the appellants who are brothers inter se gave beating to Muhammad lqbal P.W. Near the shop of Haji Baterria and Muhammad Iqbal hurled abuses to them. Sufi Aslam Hotelwala C.W.1 and Younas, Tailor-master, C.W.2 interfered and rescued Muhammad lqbal P.W. While leaving the place, Noor Muhammad appellant threatened Muhammad Iqbal P.W. With dire consequences. On the eventful day at about 9.00 a.m. Aslam, Hotelwala C.W.1 and Maqsood attempted patch up between Muhammad Iqbal and the appellants but all in vain. The appellants rather declared that they would teach Muhammad lqbal P.W. Lesson for having given filthy abuses to them. At the eventful time, it so happened that while on his way to the house of his Ustad, Muhammad lqbal P.W. Met Muhammad Tufail deceased and Nawab Din complainant in the lane of Haji Baterria. He was telling them the incident of previous day when all of a sudden, Noor Muhammad appellant, emerged from behind the trunk of a tree and gave two successive blows with Chhuri on the abdomen and flank of Muhammad lqbal. On this Muhammad Tufail deceased challenged Noor Muhammad who gave two blows with Chhuri to the former. On receiving injuries. Muhammad Tufail fell down. At this juncture Nazir Ahmed appellant reached the place of occurrence with a knife. Then he, as well as Noor Muhammad appellant injured Muhammad Iqbal with their weapons. The occurrence was seen by Gulfam P.W.9 and Noor Muhammad (not produced). Muhammad Tufail succumbed to the injuries on the spot. Muhammad lqbal became unconscious, so he was removed to the hospital.
4. On the same day Dr. Muhammad Akhtar Khan P.W.1 examined Muhammad lqbal P.W. And found following injuries on his person:- "(1) An incised wound 11/2" x 3/4" on left side of front of abdomen with omentum coming out. There was corresponding cut on the shirt.
(2) An incised wound 31/2" x 2" x muscle deep on the outer side of left thigh.
(3) An abrasion 1/2" x 12" on the front of left knee joint.
(4) A lacerated wound 11/2" x1/4 on the left side of the top of head.
(5) Two incised wounds 1" x 1/4" each on the outer side of left chest."
' Injury No,1 was found to be grievous. The rest of the injuries were simple. Injuries Nos. 1, 2 and 5 were caused with sharp-edged weapon and the rest were of blunt weapon within the duration of two hours.
' On the following day at 9.00 a.m. The same doctor conducted post-mortem examination on the dead body of Muhammad Tufail and found following injuries:- "(1) A stab wound 1" x 1/4 x chest deep on the left side of front of chest 21" medial to left nipple.
(2) A stab wound 1" x 1/4 x chest deep on the outer side of left chest."
' Both the injuries were caused with sharp-edged weapon. The stomach was filled with partly digested food matter. In his opinion cause of death was haemorrhage and irreversible shock due to the injuries which were sufficient in the ordinary course of nature to cause death. The probable time between the injuries and death was not more than five minutes and between the death and the post-mortem was 15 hours. Noor Muhammad appellant was arrested on 5-3-1981. He got recovered blood-stained Chhurri P.7 from his Dubb. On 10-3-1981 Nazir Ahmad appellant got recovered blood-stained knife P.8 from his house. The Serologist's report Exh. P.P. Shows that Chhurri P.7 and knife P.8 were stained with blood.
5. The prosecution examined 12 witnesses, out of whom Nawab Din P.W.7, Muhammad Iqbal P.W.8 and Gulfam P.W.9 have given the ocular account of the occurrence. They have supported the prosecution case as detailed above. Muhammad Nasim P.W.4, Jamil Ahmad P.W.5, Zahoor Ahmad P.W.6 and Qadir Bukhsh, S.I. P.W.12 appeared to prove the recovery of blood-stained Chhurri P.7 and blood-stained knife P.8 from Noor Muhammad and Nazir Ahmad respectively. They have supported the recoveries. The rest of the evidence is of formal nature. The learned trial Court examined Muhammad Aslam Khan and Muhammad Younas as Court witnesses. Muhammad Aslam Khan C.W.1 stated that a day before the murder, Noor Muhammad appellant and lqbal P.W. Had an altercation. They had exchanged fist blows. He and Muhammad Younas C.W. Supported them. On the following day at 10/11 a.m. He and other persons effected compromise between Noor Muhammad appellant and Iqbal P.W. And that on the same day at about Ishawela there was a fight with knives between lqbal P.W. And Tufail deceased. Lqbal P.W. Fled away from the spot.
Muhammad Younas C.W.2 stated that a day prior to the murder at Mughrabwela, Noor Muhammad appellant and lqbal P.W. Had exchanged abuses at the hotel of Muhammad Aslam C.W. He and Muhammad Aslam had separated them. Noor Muhammad appellant had asked lqbal P.W. To pay the bill while the latter asked the former to pay the same. They had exchanged abuses on the payment of bill. They had not exchanged fists and blows. In cross-examination he stated that Nazir appellant was not present when Noor Muhammad appellant and lqbal P.W. Had exchanged abuses. He further stated that he did not know who had injured Tufail deceased.
6. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. They raised plea of false implication. According to them it was a blind murder and the police had detained several persons as suspects. Iqbal P.W. Had illicit relations with the wife of Tufail deceased so they had exchanged blows with knives as a result of which Tufail died and lqbal received injuries. No evidence was produced in defence.
7. The learned counsel for the appellants submitted that the eyewitnesses are related as well as chance witnesses; that the ocular testimony suffers from material discrepancies and contradictions; that the ocular evidence is not in conformity with the medical evidence; that no witness of the vicinity was produced by the prosecution; that the medical report Exh. P.A. Shows that Muhammad Iqbal P.W. Was brought by the doctor for medical examination which falsifies the entire prosecution case and that the prosecution version is highly improbable. Conversely the learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the trial Court. The learned counsel for the complainant has also requested for the enhancement of the sentence of Nazir Ahmad appellant.
8. We have assessed and weighed the evidence on the record and the attending circumstances in the light of the arguments of the learned counsel for the parties. Keeping in mind that it is a case of denial of all the incriminating circumstances in which the entire onus lies on the prosecution to prove its case beyond reasonable doubt through reliable evidence and that the absence or weakness of defence would not strengthen the prosecution case, we proceed to appreciate the case in accordance with the guiding principles laid down by the superior Courts for appreciation of such like cases. Dealing with the foundation of the case i.e, the F.I.R. We find that it is a case of prompt F.I.R. The occurrence took place on 7.00 p.m. The F.I.R. Was lodged at 7.30 p.m. The F.I.R.
Contains the names of the culprits, witnesses, weapons of offences and the manner in which Muhammad Tufail deceased was murdered and Muhammad lqbal P.W. Was injured. There is nothing on record to show that Exh. P.G. The F.I.R. Is not a genuine document and was not written at the time and place as it purports, so much so that it was not even suggested to the complainant that the F.I.R. was prepared after preliminary investigation. The learned counsel has not ' been able to shake the F.I.R. The foundation of the prosecution case is thus concrete. We now proceed to examine whether on this foundation the prosecution has been able to construct a structure which can stand judicial test and scrutiny. This brings us to its main pillar i.e, ocular evidence which we propose to appreciate in accordance with the guiding principles laid down by the Honble Supreme Court in case Niaz v. The State reported as PLD 1960 SC (Pak.) 387:- "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 th'e 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 sets 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 circumstances which corroborate their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence."
' The first question to be considered is whether in fact the eyewitnesses had seen an occurrence and were in a position to identify the culprits, we find that the presence of Muhammad Iqbal P.W.8 is proved by the fact of injuries on his person. Nawab Din P.W.7 and Gulfam P.W.9 have given plausible explanation for their presence at the spot at the time of occurrence. The kind of weapon and location of injuries of Muhammad Iqbal P.W. Indicate that culprit/culprits were just in front of the witnesses when he received injuries and as such he had an opportunity to see and identify the culprit from close. The making of the F.I.R. With great promptitude also gives rise to the conclusion that the eye-witnesses mentioned in it could not have been procured if they had not witnessed the occurrence and that the first informant must have either witnessed affair or was otherwise connected with it. The F.I.R. Can be used to corroborate its maker. We are convinced that there is no reason to doubt the claim of the eye-witnesses that they had seen Noor Muhammad appellant killing the deceased and Noor Muhammad and Nazir Ahmad causing injuries to Muhammad Iqbal P.W. Coming to the further question whether they can be relied upon for sustaining the conviction without corroboration or not, the answer is in the positive for the reasons that they had no motive to falsely implicate the appellants and that the number and nature of injuries found on the person of deceased and Muhammad lqbal P.W. Do commensurate with the number of the appellants who actually caused injuries. The witnesses have successfully stood the test of cross-examination, nothing advantageous to the appellant could be elicited. The statements of the eye-witnesses are in consonance with the probabilities, materially fits in with the other evidence and attending circumstances and is confidence inspiring. The eye-witnesses appear to have given evidence in a straightforward manner. There were two injuries on the person of the deceased and the witnesses could easily attribute one injury to Nazir Ahmad appellant but they have not done so. They stated what they actually saw. Except for minor and immaterial discrepancies/ contradictions which are but natural in the statements of truthful witnesses, the learned counsel has failed to point out any inherent infirmity in their evidence. We do not see any material contradiction in the ocular evidence and the medical evidence. For all these reasons we are of the view that the conviction can safely be sustained even on the uncorroborated testimony of Muhammad lqbal P.W.1. We, however, find that his statement stands corroborated in all material particulars by Gulfam P.W. Who is a quite independent witness. He is neither related to the deceased nor inimical towards the appellants. The recovery of blood-stained Chhurri and knife which also stands proved by the statements of the witnesses having no against the appellant also connects the appellants with the commission of the crime. The mere relationship of the two recovery witnesses with Iqbal P.W. Is no ground to discard their testimony which otherwise has been found to be worth reliance. From the statements of the court witnesses, the incident of a day earlier which led to the murder of Muhammad Tufail and injuries to Muhammad lqbal have also been proved. The arguments addressed by the learned counsel in support of his submissions do not hold any water. The appellants did not care to rebut the prosecution case and its evidence. The plea that Muhammad lqbal and Tufail injured each other is not only unreasonable but also absurd at its face value. For all these reasons we are convinced that Muhammad Tufail died at the hands of Noor Muhammad appellant and Muhammad lqbal P.W.8 was injured by both of the appellants. On our independent assessment of the evidence we are clear in our mind that this is a case in which finding of guilty can be reached at with confidence. Since Noor Muhammad has caused the death of Muhammad Tufail, therefore, no exception can be taken to his conviction under section 302, P.P.C. On careful examination, we do not see any mitigating circumstances in his favour. He has murdered the deceased without any justification. In our opinion, he does not deserve any leniency and has rightly been sentenced to death. The fine awarded to him is also reasonable. He has also been rightly convicted under section 307, P.P.C. And awarded proportionate sentence.
9. As for Nazir Ahmad, we find that he appeared at the scene when Muhammad lqbal had already received grievous injury by Noor Muhammad. After his arrival on the spot only simple injuries were inflicted on Muhammad lqbal P.W. That being the factual position, there is no option but to alter his conviction from 307/34, P.P.C. To 324, P.P.C. He remained in jail as under-trial prisoner for about one year and nine months. After his conviction he remained in jail for more than six months. In view of the period of his detention, we feel that the sentence already undergone by him would meet the case. He is on bail. He stands discharged of the bail bonds. The appeal to the extent of Noor Muhammad is dismissed in toto and the death sentence awarded to him by the trial Court is hereby confirmed. The revision filed by the complainant for the enhancement of sentence is dismissed.
' Appeal and .