' SALEEM AKHTAR, J.---This appeal with the leave of the Court challenges the judgment passed by the learned Judges of the High Court whereby Taj alias Bhola was acquitted while the conviction passed by the Special Judge for Speedy Trials No.II, lahore against the appellants was maintained.
Iqbal alias Bhala, appellant No.1, Muhammad Sadiq, appellant No.2 and Javaid alias Jaida, appellant No.3 have been sentenced to death under section 302/34, P.P.C. And also to imprisonment for life under section 307/34, P.P.C. With fines.
2. The offence committed by the appellants as established by the prosecution has a long-standing history of personal enmity and revenge. In the FIR lodged on 21-10-1987 at 8-30 a.m., Sulaiman P.W.
3 stated that about six or seven years back on water dispute his brother Juma Khan was murdered by Bagh All who along with five others were challaned in Court, but were acquitted. To avenge this murder his brother Eisab Khan murdered Manda son of Qasim All Dogar and severed his head. The complainant and six other ' persons were challaned, who were convicted by the trial Court, but were acquitted by the High Court. Dilawar and others were aggrieved of this incident and were in the lookout for taking revenge. On the day of incident at about 7-30 a.m. Eisab Khan deceased with Muhammad Sadiq P.W. 10, who had visited their place a day earlier, went to the mosque for taking bath. At that time Ishaq and Ahmad Din were also present for taking bath. The complainant was also proceedings to the mosque for taking bath when in the market he heard Muhammad Nazir who looking towards his house called that Eisab Khan had gone to take bath in the mosque. Soon thereafter from the house of Muhammad Nazir, Dilawar armed with pistol, Iqbal armed with. 7 mm rifle, Bhola armed with .12 bore gun, Sadiq son of Ahmad Din Dogar armed with .12 bore gun and. Javaid alias Jaidi armed with Kalashnikov rushed towards the mosque. The complainant also followed them. The aforestated persons started indiscriminate firing on Eisab Khan and injured him and Sadiq in the bathroom. Eisab Khan was trying to save himself by hiding in the bath room, but the accused continued firing. Thereafter they dragged Eisab Khan out of the bath room and brought him at Chowk Tirkhanwala where Iqbal brought a Toka from the house of Nazir Dhuddi and gave it to Sadiq. Iqbal and Bhola caught hold of Eisab Khan's legs while Javaid alias Jaidi and Dilawar caught hold of hands and head of Eisab Khan. Sadiq by hitting the Toka severed the head of Eisab Khan from his body, who died. The accused went away firing and carried with them the head of the deceased Eisab Khan. The learned trial Court convicted Iqbal, Muhammad Sadiq, Javaid alias Jaidi and Taj while Dilawar and Nazir were acquitted. In appeal Taj was also acquitted by the High Court.
3. The learned counsel for the appellants contended that three accused have been acquitted, but on the same evidence the appellants have been convicted. According to the learned counsel if the evidence of P.Ws. Was not believed in respect of these co-accused there was no valid reason to accept it against the appellants. The learned trial Court while acquitting Dilawar observed that he was stated to be armed with pistol, but no empty of pistol was recovered from the spot nor is there recovery of pistol during investigation. The learned trial Court was of the view that there was no corroboration against him. While in case of Nazir it was observed that he was charged for abetment and according to the learned trial Court there was no need for making such a call. It seems that since Iqbal brought Toka from the house of Nazir and besides the father of Nazir was a prosecution witness in the murder case of Manda against Eisab Khan deceased Sulaiman complainant and others he might have been involved in the case on that account. It was observed that he was found innocent during investigation and benefit of doubt was given to Nazir and Dilawar both. The High Court acquitted Taj on the ground that the prosecution had "not been able to show muchless established, as what connection by way of relationship and friendship he had with his co-appellants to go to the extent of participating with them in the commission of the murder of Eisab Khan and attempted murder of Muhammad Sadiq. In other words there was no motive for him to commit this heinous crime and for the safer administration of justice we extend to him the benefit of doubt." Therefore, in fact the prosecution evidence in respect of these accused was not rejected as false, but due to certain circumstances mentioned above benefit of doubt was given to them. According to the prosecution, P.Ws. 3, 4, 5, and 10 were the eyewitnesses of the incident. Although P.Ws. 3 and 4 have been disbelieved by both the Courts, the fact remains that two eye-witnesses P.Ws. 5 and 10 have been believed. P.W.10 is an injured witness. He was present at the time of incident in the mosque with the deceased when the appellants came and made indiscriminate firing. The medical report corroborates and proves this fact as P.W.10 had suffered firearm injuries suffered by P.W.10 in the manner stated by him prove his presence at the place, scene and time of incident.
4. The learned counsel further contended that as P.W.10 was related to the deceased and was on friendly terms with him, he was an interested witness and his testimony cannot be believed without any independent corroboration. According to the learned counsel there exists no independent corroboration and therefore his testimony should be rejected. P.W.10 was on friendly terms with the deceased and was related to him. From his statement it seems clear that he had intimate friendship with the deceased and was on visiting terms. It was for this reason that the deceased had informed him all about the appellants with whom he had enmity and it seems that he was conscious of the fact that they may take revenge from him. These facts do substantiate that P.W.10 was aware of the enmity between the parties and had also known the appellants/accused as well.
Both the Courts below have scrutinized and analysed the entire evidence and have correctly appreciated and drawn conclusions from it. The medical evidence does corroborate the statement of P.W.10 and he seems to be a truthful witness as he has given a correct account without exaggeration and has not related incidents subsequent to the firing in the mosque viz. The chopping off the head of Eisab Khan.
5. The fact that P.W.10 was an injured witness is a very important factor in appraising his testimony.
Mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such ground. An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused.
The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State PLD 1962 SC 269 . In the present case P.W.10 is not an interested witness as nothing has been brought on record to show that he had motive for falsely implicating the appellants or was personally involved in any act of enmity between the parties. In Khalil Ahmad v. The State (1976 SCM R 161) the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human blood stained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. The State (1970 SCM R 734) the testimony of four P.Ws. Out of which two had sustained injures was accepted although they were related to the deceased because they were natural witnesses, injuries sustained by two P.Ws. Proved their presence and involvement in the occurrence and there was motive on the part of the accused to attack the deceased. Further their evidence found support from the medical evidence. Reference can also be made to Muhammad Akbar v. Muhammad Khan and others (PLD 1988 SC 274) and Shehruddin v. Allah Rakhia (1989 SCM R 1461 at 1465) where testimony of injured witness was accepted. In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCM R 777) it was observed that "to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not." Applying these principles to the present case the presence of P.W.10 cannot be doubted. He has suffered injuries. The medical evidence also supports his version. The .Recoveries also corroborate his statement as besides the arms and empties that were recovered, towel, chaddar, "safa", soap, bottle containing oil and a pair of shoes of Eisab Khan deceased, lend support to the testimony of prosecution witnesses including P.W.10. Nothing has been brought on record to show that he was personally involved in the enmity between the parties. Therefore, his testimony is sufficient to establish the crime against the appellants. Besides this P.W.5 had deposed about the incident relating to chopping off the head of Eisab Khan. There is no inconsistency or material contradiction to discredit his testimony. The medical report corroborates his statement.
6. The learned counsel contended that having received a number of firearm injuries as alleged Eisab Khan deceased would not have been in. a position to walk and as there was no injury on the dead body to show that he was dragged on the ground, the testimony of P.W.5 becomes doubtful and it is possible that the occurrence might not have taken place in the mosque as alleged by the prosecution. According to P.W.10 at the time of incident the deceased was wearing vest and shirt.
P.WS also stated that the accused dragged Eisab Khan and at the time of severing his head Bhola and Dilawar were holding the legs while Iqbal and Jaida held him by his arms and head. It seems that all, the four accused, who were holding the deceased, must have taken out the body by lifting and partly dragging. As the deceased was wearing vest and shirt it is probable that the injury due to dragging may not have been caused.
7. The motive alleged by the prosecution lends credence to the testimony of P.Ws. In the background of enmity between the parties severance of Eisab's head was by way of revenge in the same manner as Eisab had done earlier.
8. We are therefore of the view that no illegality or irregularity can be found in the impugned judgment and therefore the appeal is dismissed.
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