' ABDUL REHMAN KHAN, J.- This judgment will decide Criminal Appeal No, 27 of 1988 filed by the appellants against their conviction under section 302/34, P.P.C. And Criminal Revision No, 30 of 1988 brought by the complainant for enhancement of sentence to death, increase in fine and separate award of compensation etc. The learned trial Judge through the impugned judgment, dated 31-8- 1988 found the appellants guilty of the murder of Abdul Ghaffar, convicted them under section 302/34, P.P.C. And sentenced each one of them to imprisonment for life and a fine of Rs,5,000 or in default of line to suffer further two years' R.I. And this fine was ordered to be paid to the legal heirs .Of the deceased. Period of incarceration as under trial prisoners in terms of section 382, Cr.P.C.
Was ordered to be counted towards period of imprisonment. Ali Zaman father of Muhammad Maroof appellant and Sikandar father of Muhammad Afsar appellant who were tried along with the appellants' were, however, acquitted of the charge. The incriminator Muhammad Farooq P.W.7 in his first information report implicated the appellants and the acquitted accused and the F.I.R. When rendered into English would read as under:-- "About 10 days back I had a dispute over a path with Ali Zaman and Sikandar sons of Mir Zaman which resulted into an altercation between us and later on this strife was patched up through compromise. Today, I was present in my house. My brother Abdul Ghaffar was proceeding towards a shop to make purchases for Aftari and when at 7 O'clock in the evening he reached near the Hujra of the village then Muhammad Maroof son of Ali Zaman and Muhammad Afsar son of Sikandar attacked him with daggers and injured him. Fida Muhammad son of Muhammad Farid informed me and went to the spot. My brother Abdul Ghaffar was injured and was lying smeared with blood. On my enquiry he told that he had been severely injured by Muhammad Maroof and Muhammad Afsar with Chhuris blows. The blow caused by Muhammad Maroof hit him in his chest and abdomen while the blow of Muhammad Afsar injured him in his back. I was bringing my brother on a Charpoi with the help of the other villagers to report the matter but he succumbed to the injuries enroute. Besides the mentioned Fida Muhammad, Muhammad Manzoor son of Khani Zaman and Jawaid son of Khani Zaman witnessed the incident. My brother Abdul Ghaffar has been murdered by Muhammad Afsar and Muhammad Maroof at the actuation of Ali Zaman and Sikandar."
2. It is pertinent to give resume of the relevant evidence relied upon by the prosecution for involvement of the appellants in the offence. P.W.2 Malik Arbab Khan witnessed the recovery memo. Exh.P.F. Whereby blood-stained earth near the Hujra was taken into possession and sealed.
He has also signed the recovery memo. Exh.P.G. By which small pieces of stones were picked up from the spot. Maroof while in custody pointed out a place in his residential Kotha and took out a Chhuri and the memo. Exli.P.H. Prepared in this respect was signed as a marginal witness by this P.W. Gul Zaman A.S.I. Who appeared as P.W.3 deposed to the arrest of Muhammad Afsar from his unit. P.W.4 Fazal Ahmad appeared as marginal witness of recovery memo. Exh.P.J. Vide which a Chhuri was recovered from the house of Sikandar accused and was wrapped in a piece of cloth. Ali Akbar I.H.C. While appearing as P.W.5 stated that he had arrested accused Maroof on 19-6-1985.
P.W.7 Muhammad Farooq is the first informant and almost reiterated whatever he had alleged in the F.I.R. Manzoor P.W.8 appeared as eyewitness and stated that he was serving in Army and on the day of occurrence had come on leave to the village for celebrating Eid. About half an hour before Aftari while he was proceeding to his house he saw Maroof and Muhammad Afsar accused altercating with Abdul Ghaffar. Muhammad Afsar then took out a Chhuri or knife but the witness pushed him aside. However, thereafter both the accused attacked the deceased and gave him Chhuri blows. Abdul Ghaffar then got up and while bleeding went to the house of this witness and there he fell down. P.W. Muhammad Farooq reached there and on his enquiry the deceased charged both the accused for his injuries. Fida and Jawaid were also present at that time and other people also came. He further said that he had no relation with any party and that he was not in a position to say which of the accused injured the deceased in front and which on back. P.W.9 Jawaid also furnished ocular account and deposed that it was the month of Ramzan and at about 7 or 7-30 p.m. He went to the village Hujra. He noticed the appellants giving blows to the deceased with Chhuris out of whom Maroof stabbed him in the front while Muhammad Afsar caused him injuries on his back. Abdul Ghaffar in injured condition went to the house of Manzoor. He also described Fida and Manzoor as eye-witnesses of the incident. P.W.10 Muhammad Sultan Khan S.I.
Had partly investigated this case. Accused Muhammad Afsar led him to his house and pointed out the place where he had concealed the dagger and after taking it out from there handed it over to the witness. Recovery memo. Exh.PJ. Was prepared in this respect. Fida and another eye-witness who while appearing as P.W.11 stated that at the relevant time he was sitting in village Hujra when Abdul Ghaffar came there and sat with him. In the meantime the two accused also appeared there and the accused and the deceased started abusing each other. Accused Maroof Khan inflicted two injuries with dagger on his front while Muhammad Afsar caused him one dagger blow on his back. Abdul Ghaffar in injured condition proceeded to the house of P.W. Manzoor for shelter while the witness went to the house of Abdul Ghaffar to inform his relations. P.W.12 is Doctor Khurshid Anwar who performed post-mortem examination on the dead body of Abdul Ghaffar and found the following on external examination:- "Body stout. Regor mortis and P.M. Staining fixed. Blood-stained clothings present.
(1) Incised wound 2 c.m. x 1/2 c.m. x bone deep, 1-1/2" above and to the right of the left nipple.
(2) Stab wound 1-1/2 c.m. x 1/2 c.m. At left side of the epigastrium, ementum protruding out of wound.
(3) Stab wound 2 c.m. x 1/2 c.m., 4 c.m. Below and to the left of the left axila on the back."
' On internal examination the doctor also found thorasic walls and paleurae on the left side injured.
Left plural cavity was full of blood. Left lung was also found injured. Heart was healthy and empty.
Blood vessles injured. Abdominal walls injured at epigastrium. Peritoneum was injured. Stomach was empty. Small intestines were empty and contained gases. Large intestines also contained gases. Bladder had little quantity of urine. In the opinion of the doctor the death occurred as a result of sharp-edged weapon causing injuries to left lung resulting into hemorrhaged and shock.
3. The witness examined as P.W.13 Mr. Ghulam Mustafa S.I. Is the Investigating Officer who deposed that on knowing about the incident he went to Civil Hospital, Mansehra along with some police personnel, met P.W. Farooq there and recorded his report about the event and dispatched the Murasila to the P.S. For registration of the case. The injury sheet and inquest report of the deceased was then prepared by the witness and sent the dead body for postmortem examination. He then reached the spot for investigation but as it was dark by then, therefore, he postponed the investigation for the next day and appointed a constable to guard the spot at night. The next day he prepared the site plan Exh.P.B. And secured blood-stained earth from the Verandah of the house of P.W. Manzoor where the deceased had travelled in injured condition. Memo. Exh.P.F. Was prepared in this respect. Through Exh.P.J. He obtained six small blood-stained stones from the place of occurrence. He then recorded statements of eye-witnesses and also marginal witnesses.
Maroof accused led this witness to a place in his house from where he produced crime dagger which was taken into possession through recovery memo. Exh.P.H. He then sent the stone, blood- stained earth, shirt of the deceased and the Chhuri for chemical examination. The last witness Syed Muhammad Shah appeared as P.W.14 and stated that on receipt of Murasila he incorporated its contents into F.I.R. And registered the case. On completion of the investigation he submitted complete challan against the accused.
4. Both the accused on their examination under section 342, Cr.P.C. Denied the charge, condemned the complainant side for their false involvement on account of enmity. Both of them declined to appear as their own witnesses in terms of section 340(2), Cr.P.C. Accused Maroof did not wish to produce defence while accused Muhammad Afsar examined one witness in his defence to support his plea of alibi to the effect that he was in Army and at the relevant time he was on deputation in Chaklala from his unit which was then stationed at Muzaffarabad. Accordingly Subedar Muhammad Siddique was examined as D.W.1. This defence witness brought on record Exh.D.W.1/1 authority letter for appearance in Court, enquiry report Exh.D.W.1/2, copies of the statements of Ismail Khan and Muhammad Ali Khan recorded in the said enquiry were exhibited as Exh.D.W.1/3 and Exh.D.W.1/4 while copy of the letter from Officer Commanding to S.P. Was produced as Exh.D.W.1/5.
5. The learned trial Judge found the appellants guilty on these grounds:--
(a) Promptitude in lodging the F.I.R.
(b) Independent and disinterested eye-witness account furnished by the eyewitnesses who had no motive of their own to falsely implicate the appellants and whose version of the event is truthful and confidence inspiring.
(c) Recoveries of the crime weapon (Chhuri) at the behest of the appellants.
(d) Medical evidence coincided with the ocular testimony.
(e) Broad daylight incident and no possibility for any mistake in identity. No reason pointed out for letting real culprits and substituting the appellants.
(g) Motive substantiated and defence evidence is not satisfactory.
6. The learned counsel appearing for the appellants at the very out set condemned the prosecution for its failure to prove the motive as according to him there was no corroboration of the complainant's statement in this respect. This argument is of no consequence as the complainant had consistently alleged this particular motive which leaving aside its rebuttal by the defense it has not even seriously been challenged in cross-examination. Moreover the defence has not been able to suggest any other motive for false implication. Even otherwise it is now well- settled that nothing material turns on absence or weakness of motive if otherwise the guilt is proved. This argument rather goes in favour of the prosecution because in absence of any motive there was no occasion for accusing the appellants and letting Zahoor who had divorced the sister of complainant. The learned Advocate next submitted that the venue of occurrence is not that which has been shown by the prosecution. To be more specific it was submitted that if the scene of the clime had been the one as alleged then trail of blood should have been found in between point No,1 where the deceased was injured and point No,2 where he fell after the receipt of injuries. The next reason advanced in this context was that the injured could not cover that much distance as according to the doctor one of the injuries had resulted into-haemorrhage and shock. This argument ignores the recovery of six blood-stained pieces of stone from point No,1 where the deceased received injuries and is also oblivious of the recovery of blood-stained earth from point No,2 where he fell. It is interesting to C note that the defence itself has rather admitted the trail of blood in between the said two points as is clear from the following lines of cross-examination of Manzoor P.W.8, 'It is correct that there was a trail of blood from point No,1 to point No,2'. Even otherwise it is in evidence that in between the said two points is a thoroughfare and that the site plan was prepared the next morning, therefore, till then the trail of blood could not remain intact.
There is no such positive indication in doctor's statement that after receipt of the injuries the injured could not walk nor the defence has questioned the doctor on this aspect. The third criticism of the learned counsel is that none of the witnesses was present at the time of occurrence and that the entire story was fabricated after medical evidence was made available. We are afraid such a general and sweeping assertion cannot prevail without any basis. It is a matter of record that out of the eye-witnesses i,e, Manzoor P.W.8, Muhammad Jawaid P.W.9 and Fida Muhammad P.W.11 none had any motive against the appellants to bring a false charge against them. Although it is correct that Fida Muhammad and Jawaid are somehow related to the deceased but merely because of this relation their testimony cannot be discarded unless it is further shown that they had something of their own to grind D and for that matter to incriminate them in the offence and particularly so when even the deceased had no serious enmity against the appellants. This is now admitted position that such a witness cannot be described as interested witness so as to discard him on this score. However, we find that Manzoor P.W.8 has no relation with the deceased nor he had any grudge against the appellants. He is entirely an independent and disinterested witness and the learned counsel could E not even remotely point out or suggest any ground for rejecting the testimony of this witness. This witness is also a natural witness as the incident occurred just in front of his house and the deceased entered his house to take shelter and blood was recovered from the place where he fell in the house. Moreover, the depositions of these witnesses do find support from medical evidence, site plan, recoveries of the weapons of offence at the instance of the appellants and their testimony can, therefore, form safe basis for conviction of the appellants. The contention of the learned counsel that as some of the witnesses have denied proved relationship therefore, their evidence cannot be adopted for conviction is not sound as grain is to be sifted from chaff and there is no legal bar in relying for conviction over that portion of the statement which finds support from other material on record. Moreover, we have no reason to doubt the capacity of the deceased to speak after receiving the injuries and for that matter to discard his F oral dying declaration and the statements of the eye-witnesses in this respect. The evidence of the witnesses on this score too has not been shaken, the Medical Officer has not been asked anything about it. In nutshell there is no foundation for the argument that the deceased could not make dying statement in presence of the positive testimony of the witnesses who deposed that he could speak and he made a dying declaration. The recoveries at the behest of the appellants have rightly been considered as supporting evidence as there is no reason to doubt the evidence of those who deposed about it.
The learned trial Judge was justified in discarding the incredible defence version. The relevant documents to show the G attendance of Muhammad Afsar appellant in the workshop have not been produced rather it appears to have purposely been withheld as is apparent from the following statement of D.W.1 in his cross-examination. 'Neither the Log Book nor the jeep is in existence now. It is correct that when a vehicle is taken to the workshop, the person signs the documents in the workshop of handover of the vehicle and when he takes back after restoration he again signs the documents. Similarly none was produced to testify to his presence in the workshop.
In view of these inherent weaknesses in defence evidence the learned counsel for the appellants could also not seriously press it into his arguments.
7. We are, therefore, of the view that the learned trial Judge was legally justified in holding the appellants guilty of the offence on the basis of the evidence brought on record by the prosecution.
We, therefore, find no substance in this appeal which is accordingly dismissed. Similarly, the revision petition also merits dismissal as the reasons given for lesser penalty are well-founded and have been recognized as legal for imposition of lesser punishment by the superior I Courts. We also find no merits in the other reliefs claimed in the revision and accordingly reject this revision petition.
Appeal and .