ZAKI-UD-DIN PAL, J.----Safdar son of Azad, Piracha by caste, resident of Khurram Piracha, Police Station Sangjani, District Rawalpindi has been found guilty under section 302, P. P. C. By the learned Sessions Judge, Rawalpindi by his judgment dated 18.9-1970 and has been sentenced to death for the murder of Wilayat Ali son of Muhammad Zaman, Piracha, resident of the same place at about 8-00 p.m. On 5th of September 1969. The convict has filed Criminal Appeal No. 633 of 1970 against his conviction and sentence while the learned Sessions Judge has made reference under section 374, Cr. P. C. For the confirmation of death sentence. This judgment will dispose of both the appeal and the reference.
2. The F. I. R. In this case was lodged by Abdul Majid (P. W. 7) son of Rehmat Din at 12-00 night on the same day. It is admitted that village Khurram Piracha, where the occurrence took place, is situated at a distance of eleven miles from the police station. The F. I. R. (Exh. P. F.) was recorded by Nasar Bedar Shah S. H. O. Police Station Sadar (external), P. W.
15. The said witness reached the spot at about 4.30 or 6 a.m. Of the next day. He prepared the injury statement (Exh. P. J.) and inquest Report (Exh. P. K) of the deceased and sent his dead body for post-mortem examination under the escort of Muhammad Akram, F. C. (P. W. 2) and Zardar F. C. He collected the blood-stained earth from the spot and made it into a sealed parcel vide memo,. Exh. P. .G. He recovered one .12 bore empty cartridge (P. 5) from the spot and sealed it into a parcel vide memo. Exh. P. B. He arrested - the appellant on 8th of September 1969, who had absconded after the commission of the offence.
The appellant was produced before him by his father and one Raza Hussain Shah B. D. Member.
The weapon of offence i.e. .12 bore country-- made pistol (P. 6) and one. 12 bore live cartridge (P. 8) were recovered from the kotha of the appellant at his instance. The pistol was made into a sealed parcel vide memo. Exh P. C. The Investigation' Officer also got prepared site plans Exhs. P. L., P. L./1 and P. L./2,from Qamar-ud-Din Siddiqui, Draftsman and, added Notes 1 and 2 to red ink therein.
3. According to the prosecution, on the day of occurrence, i.e. 5-9-1969, at about 8-00 p.m. Wilayat Ali (deceased), Abdul Majid (P. W. 7), Haji, Roshan Din (P. W. 9), Malik Mansabdar (P. W 10), Master Nazir Ahmad son of Nabi Bakhsh, Malik Allah Dad (P. V. 8) and Rehmat Din (P. W. 11); all residents of Abe same village, gathered near the house of Muhammad Bakhsh Bakhu Piracha, and formed a Jirga in order to go to the house of Azad son of Ghulab, father of the appellant, for the purpose of settling the dispute between the deceased and the family members of said Azad. They all started towards the house of Azad. 4 Roshan Din and Abdul Majid (P. Ws.) were holding laltains. When they were going towards the said house, Azad, father of the appellant, also came and' joined them.
When they reached near the house of Rehmat Din son of Fateh Noor, which is situated near the house of said Azad is the lane, the appellant came from behind and went ahead of the deceased and fired at him. Wilayat Ali (deceased) fell dew on account of that injury. At this, Azad told the appellant that he had done great harm to the deceased. Safdar, however, shouted that he had done his job without any fear of being hate. After saying this he went back. Wilayat Ali was fired at the back and died on the spot.
3. The motive as disclosed by the prosecution is that Wilayat Ali (deceased) wanted the hand of Mst. Shamim Akhtar daughter of Bahadur, his sister-in-law, for his real brother, namely, Mahboob.
This wee, however, refused by the father of Mse. Shamim Akhtar and at this Wilayat Ali (deceased) tried to abduct here forcibly but failed. Thereafter, Shamim Akhtar was Married to khadim, brother of the appellant. Wilayat Ali (deceased) felt aggrieved at this and he, thereafter, fired at Khadim who escaped the injury. At the time when Wilayat Ali (deceased) died, he was involved in two cases in respect of the above--mentioned offences. Since Mg. Shamim Akhtar had been married to Khan, therefore, Wilayat Ali wanted to effect compromise with Azad, father of the appellant, and other persona involved in the cases. According to the prosecution, appellant, Muhammad Safdar, fired at Wilayat Ali (deceased) and killed him in order to avenge the fire attack made by the deceased on his brother, Khadim.
4. Dr. Abdul Majid (P. W. 1), Medical Officer D. H. Q. Hospital, Rawalpindi, performed the post-mortem examination on the dead body of Wilayat Ali (deceased) and found the following injury on his person :---- "Four circular inlet wounds on the right chest back, below and outer to the lower angle of right scapula in an area of 1 --' x 1--', 1/3' x 3' x chest cavity deep each, the margins of the wounds were inverted, and corresponding holes over the shirt were present."
On opening the chest, the doctor found that the seventh rib on the right side over the back was fractured through and through. Pleura was found punctured and pleural cavity was full of clotted blood on both sides. Right and left lungs were found punctured through and though. Aorta was punctured through and through. According to the doctor, the death of the deceased was due to shock and haemorrhage as a result of the injuries; which were sufficient to cause death in the ordinary course of nature. Probable time that elapsed between the injuries and the death was instantaneous and between death and post-mortem was about 17 hours.
In his cross-examination, the doctor stated that the assailant must have been on the right hand side towards the back of the deceased. According to him, this was suggested by the transverse nature of the wound: He also opined that the last meal would have been taken by the deceased about 1 /2hour the infliction of the injury.
5. The ocular evidence in this case consists of five witnesses i.e., P. W. 7 to P. W.
11. All the eye- witnesses have supported the prosecution version with some discrepancies here and there. The learned counsel for the appellant has argued that the testimony of the eye-witnesses cannot be relied upon as they are interested Egg persons again the appellant. According to him, Allah Dad (P.
W. 6) As a chance witness, who is permanent resident of Rawalpindi. The learned counsel has argued that Haji Roshan Din (P. W. 9) did not see the appellant at the spot and stated at the trial that he recognized him from his voice. The same was them position with regard to Mansabdar (P.
W. 10), who had stated before the committing Magistrate that he had not seen the appellant at the spot but had recognized him from his voice. The learned counsel has submitted that the lane where the occurrence took place is very narrow ; it is hardly 3 to 4 feet wide and, therefore, according to him, two persons at a time cannot pass through the same. He has argued that according to Abdul Majid and Rehmat Din (P: Ws.) the appellant fired at the deceased from a distance of one foot. If it was so, then there should have been: charring and blackening around the wound on the body of the deceased. Since it was not there, therefore, the testimony of the P. Ws.
Cannot be believed. The learned counsel has further argued that there is no independent corroboration of the testimony made by the P. Ws. Ele submits that the recovers, with-.Regard to the weapon of offence has not been proved as Muhammad Shafi, Moharrir A. S. 1. (P. W. 3) did not remember whether he received the sealed parcel of pistol from the S. H. O. And Muhammad Akram F. C. (P. W. 2) did not remember whether he handed over the sealed parcel, containing empty cartridge, to the Maharrir A.S.I. After receiving the same from the S. H. O. The learned Sessions Judge has not relied upon this recovery due to defective evidence of Muhammad Shafi, Moharrir A. S. I. (P.
W.) ,and Muhammad Akram, F. C. (P. W.).
6. All the P. Ws., as mentioned above, have clearly stated in their evidence that P. Ws. 7 to 11 along with Wilayat Ali (deceased) formed a Jirga at the instance of the deceased and went to the house of Azad; father of the appellant. They have further stated that when they reached near the house, of Rehmat Din son of. Fateh Noor, appellant's father, Azad; also joined them. Appellant came there and fired a pistol shot at Wilayat Ali (deceased), which hit him on his back. The deceased fell down on the ground on receiving the fire-injury. They have further stated that Azad, father of the appellant, was asked by Mansabdar (P. W.) as to why the deceased had been fired at by Safdar when they all were going to his house in panchayat. At this, he told the appellant that he had not done well while the appellant replied that he had done his job and was not afraid of being hanged.
Thereafter, the appellant ran away with his pistol. Haji Roshan Din (P. W.), who was ahead of all, has however stated that he did not see the appellant at the spot, but recognized him from his voice.
Apart from this discrepancy, he has corroborated the statements of the other P. Ws. Mansabdar (P.
W.) stated at the trial that he recognized the appellant at, the spot after he had fired the shot at the deceased. He wad, however, confronted with his statement made before the committing Magistrate, where he had stated that, he recognized the appellant from his voice. The learned counsel for the appellant has tried to argue on the basis of the said discrepancies made in the statements of Haji Roshan Din and Mansabdar (P. Ws.), particularly with regard to the presence of the appellant at the spot and his recognition by them, that the presence of the appellant on the spot was not proved by the statements of these witnesses. We do not agree with this contention. All the P. Ws. Without any exception have stated that Wilayat Ali (deceased) in their company went to the house of Azad, father of the appellant, at about 8-00 p.m. On the day of occurrence. They had gone there in the form of a Jirga to effect compromise regarding the dispute pending between the deceased and the family of the appellant. The place of occurrence has been fully described by all the P. Ws. And has not been denied in any of the suggestions put forward by the defence. The dead body of the deceased was also recovered from near the house of the appellant. Then it has further been stated by all the P. Ws. That the deceased was fired at by the appellant, who on having been reprimanded by his father for this act, told him that he had done his job and was not afraid of being hanged. It has not even been suggested that the deceased hate enmity with ay of the other resident' of the lane where the incident took place. All this shows that the deceased was killed by the appellant.
7. F. I. R. With regard to the occurrence was lodged within a period of four hours though the distance of the Police Station from the place of occurrence was eleven miles. It was lodged by Abdul Majid (P. W. 7) son of Rehmat Din, who had no previous enmity with the appellant nor any such thing has been claimed by the defence in the cross-examination. It cannot be said that there was any consultation between the P. Ws. Or family members of the deceased as to who should be involved in the case. It has been argued that the real enmity was between the deceased and Khadim, brother of the appellant, and. Safdar appellant has been falsely involved in the case. It is the defence version that Khadim, brother of the appellant does not reside in the village. He is employed in Wah factory and resides there. This has been conceded by the learned counsel for the defence.
In the circumstances, the apprehension that the appellant was falsely involved in the case is quite remote.
8. There is no possibility of fabrication of the prosecution version as the P. Ws., who have been produced in the case, have no direct motive against the appellant. Much stress has been laid on the statements of Haji Roshan Din (P. W. 9) and Mansabdar (P. Ws. 10) by the learned defence counsel. He has, contended that since the said two witnesses did not see the appellant at the spot and recognized him only by his voice, there-- fore, the presence of the appellant on the spot cannot, be proved. Ass discussed above, the said two witnesses have corroborated the prosecution version in all material respects. Mansabdar (P. W.) is related to the appellant and Haji Roshan Din (P. W.) Is alleged to be a distant relation of the deceased, who was related to the appellant. It is, therefore, possible that the said two witnesses may have been influenced by the relations of the appellant to make some concessions to the appellant in their statements. Apart from that, their statements clearly show that the appellant was involved in the murder of the deceased as discussed above.
9. The circumstances of the case show that these was no motive on the part of the eye-witnesses to falsely implicate the appellant. These eye-witnesses have been called interested being relations of the deceased and their statements have been alleged to be without corroboration. However, statement of an interested witness, who has a motive to falsely implicate an accused person, can be accepted in the circumstances of a case even without corroboration. It has been held by their Lordships of the Supreme Court in Nazir and others v. The State (PLD 1962 SC 269) that corrobora-- tion does not necessarily mean word of an independent witness, but anything in the circumstances, which tends to satisfy the Court that witness has spoken truth. The relevant portion of the judgment may be reproduced hereunder, with advantage: "By what we said in Niaz v. The State, we were not laying down any rule of law though we were explaining for the guidance of Courts our own approach to the problem that generally confronts the Courts in cases of crime by violence. It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts.
But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness, whom the Court regards incapable of falsely implicating an innocent person. But he to be an exceptional witness, and so far as an ordinary interest v. Witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction.
This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration, it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tend sufficiently, to satisfy the mind of the, Court that the witness has spoken the truth. What circumstances will be sufficient as corrobora--tion it is not possible to lay down. But, as the question before the Court would be whether some innocent person had, not been implicated in addition to those who word guilty the circum--stances relied upon must have a bearing, on this question. 'In the case of an interested witness the corroboration needs not be of the same probative force as in the case of an accomplice for the two do not stand on the same, footing."
The circumstances of the case, as discussed above, give sufficient support to the statements made by the P. Ws. So as to create that degree of probability which can be made the basis of conviction of the appellant.
Moreover, according to the' well settled principles of th appreciation of the evidence, the relationship of witnesses with th deceased is itself no ground to reject their testimony, unless it is further shown that they have been actuated by enmity and malice to falsely implicate the accused person. The statement of witness has to be adjudged with intrinsic merit in the light of all the relevant facts external and internal to judge its veracity. Nothing has been brought on record to show that some untoward incident happened during the period preceding the murder of Wilayat Ali (deceased) between the P. Ws. And the appellant. As such, it cannot be said that their statements were actuated enmity and malice. If the account given by the eye-witness is consistent and no material circumstance or fact is elicited in their cross-examination to cast doubt on their presence at the scene of crime, then the mere fact that the eye-witnesses are related to the deceased will not be a valid ground for rejecting their testimony. Nor can the statement of a witness be thrown out merely because it suffers from falsehood in some unimportant particulars, if otherwise it is found to be true and acceptable in the main and essential particulars. Reliance in this respect can be placed upon Abdul Hamid v. The State (1969SCMR302), Muhammad Shafi v. The State (1971SCMR229) and Hidayat Ullah sand another v. The State (PLD 1971 Kar. 817).
In the present case, the statements of the eye-witnesses are consistent in all material respects and if there are minor discrepancies or variations therein then they have to be ignored. They have given the details of the incident which fit in with the circumstances attending upon the crime.
10. The learned counsel for the appellant has argued that he statement of some of the P. Ws., that the deceased was fired-- at by the appellant from a distance of hardly one foot is belied by the medical evidence, as according to that there is no charring and blackening around the wound on the dead body. This contention has no force. The learned Sessions Judge has rightly Observed while referring to the testimony of P. Ws. Abdul Majid and Rehmat Din, that what they meant by stating that the deceased was fired at from a distance of hardly one foot was that he was fired at from a close range. These witnesses cannot be expected to give the exact distance of the range within which the shot way fired at. This is, however, correct that if the shot is fired at within the range of about four feet, then charring and blackening can be caused otherwise not, However, according J. P. Modi's Medical Jurisprudence & Toxicology, 10th Edn. (1949), p. 212, under the heading "Distance of the firearm," if the powder is smokeless then there will be no blackening of the skin, but there may be a greyish or white deposit on the skin round the wound. No blackening or scorching is found, if the fire-arm is discharged from a distance of more than four feet. Moreover, these signs may be absent even when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame, smoke and particles of gunpowder will all follow the track of the bullet in the body. As such, the testimony of the said two witnesses cannot be rejected merely on the point that the gunshot was fired from a distance of one foot.
11. The learned counsel for the appellant has further argued that since the lane where the occurrence took place is very narrow, as described above, therefore, if the deceased was fired at even from a close range, then the other persons, namely, ahead of him and after him, should have also been injured. We do not see any force in this contention in the circumstances of the case. All the members of the Jirga were going in, one line followed by the after the other. Each one of them was separated by some distance. As such, if the fire was aimed at a particular person, Un it could hit him and nobody else. The statement of Dr. Abdul Majid, Medical Officer, who performed the post-- mortem examination on the dead body of the deceased, to the effect ; that the assailant must have been on the right hand side towards the back of the deceased, tends to shown that the assailant while passing by the right side of deceased went a little ahead of him and fired at him and the deceased was rightly wounded on the right chest back. In this way, there is no probability of other person going ahead of the deceased and after him having been injured. The learned counsel has further argued that the laltains, which are alleged to be carried by Abdul Majid and Haji Roshan Din (P. Ws.) were never produced and taken into possession by the police and, as such, it was not proved that the eye-witnesses could recognize the assailant on account of the darkness of the night. This is true, that the production of the lantains would have further strengthened the prosecution case, but in their absence, it cannot be said, as discussed above, that the circumstances of the case do not support the prosecution version.
12. The learned counsel for the appellant has also contended that the motive against the appellant for the murder of the due, as given by the prosecution, is very weak in the circumstances of the case. He has contended that after the marriage of Mst. Shamim Akhtar with Khadim and after the compromise having been effected between the parties with regard to the case of abduction, there was nothing left which could make their relations further strained. We do not see any force in this contention. The fact is that both the cases with regard to the abduction of Mst. Shamim Akhtar and murderous assault on Khadim, the brother of the appellant, by the deceased were pending in the Court at the time when the occurrence took place. It is the prosecution case that after the marriage of Mst. Shamim Akhtar and after some compromise with regard to the abduction case pending against him, Wilayat Ali (deceased) was trying to effect compromise also in the case pending against him under section 307, P. P. C. Nowhere it has been suggested. By the defence during the cross-examination of the P. Ws., .That the said cases were not still pending against the deceased. It is very much probable that the appellant, who is real brother of Khadim, got enraged by seeing the deceased in the company of other persons near his own house, when the deceased was responsible for are attempt to abduct the wife of his brother and for murderous assault on his real brother. As such, existence of motive cannot be denied. Moreover, the absence of the appellant from the village for about two days after the occurrence is a pointer to his guilt, and his conduct in this regard is another corroborative piece of evidence against him. As such, irrespective of the fact that recovery of the weapon of offence has not been proved in the case, the circumstances of the case, as discussed above, clearly show that the appellant was involved in the murder of Wilayat Ali (deceased) and he has been rightly found guilty under section 302, P. P. C.
13. Now remains the question with regard to quantum of sentence. It is admitted that the honour of the family, particularly that of a lady, was involved in this case. The deceased had tried to abduct the wife of the appellant's real brother and g case with regard to that offence was pending against him. He was further guilty of murderous assault on Khadim, the real brother o the appellant. The basis for the entire dispute was Mst. Shamim Akthar. The appellant committed the crime from the sense of honour involving an insult to the wife of his brother. According to law, where the sense of honour of a family and particularly that of a lady is involved, lenient view should be taken with regard to the quantum of sentence. Reliance in this respect can placed upon Muhammad Ramzan v. The State (PLD 1966 SC 129), Fazal Khan v. The State (PLD 1966 SC 602) and Riaz Khan v. The State (1971 P Cr. L J 575). The appellant h been sentenced to death, but in view of the circumstances explain--ed above, we decline to confirm the sentence of death awarded to him and substitute it with transportation for life. With the above modification in the sentence, the appeal is dismissed.
The death sentence is not confirmed and the reference is answered accordingly.