' M. S. H. QURESHI, J.-This is the convict's appeal against the award of death sentence under section 302, P. P. C. Upon his conviction of the murder of Mst. Rabic Bibi. The death sentence is also before us for confirmation,
2. The aforesaid murder took place in village Gakharwali, 10 miles from and within P. S. Satrah, District Sialkot. According to the prosecution story, Muhammad ghafi, the complainant in this case, had about two months before the occurrence, migrated from District Lyallpur and had taken up residence at Gakharwali which was his ancestral village. About four days before the occurrence, appellant Khushi Muhammad was seen twice or thrice peeping inside the complainant's house through the door and when Ghulam Rasul, brother of the complainant, objected to it, the two exchanged hot words and abuses. Ghulam Rasul informed Karamat Ali P. W. But at the latter's enquiry, the appellant denied the accusation. On 27-6-1970, at about 9 p.m., Muhammad Shafi, complainant, was present in his house with his family and a lantern was burning from the wall in the courtyard when the appellant fired a revolver shot from the roof of his house, which was adjacent to that of the complainant. After firing the shot, the appellant began to shout abuses and threats at the complainant. Muhammad Khan P. W. Who lived nearby came on hearing of the shot.
Many other persons also collected. Muhammad Khan tried to dissuade the appellant from resorting to violence but it was of no avail and after about 10 minutes the appellant fired another shot at the complainant who escaped as he had, in the meantime, been luckily pushed out of the courtyard into the lane by Muhammad Khan. The shot, however hit Mst. Rabia the deceased who was, at that time on the roof of the house of Ghulam Nabi situate in front of the complainant's house across the lane. She died at the spot. The appellant fled from the scene but the complainant, out of fear, did not move out of the village during the night. He came to the Police Station Satrah the next morning and lodged report at 7 a.m. The appellant absconded and was declared a proclaimed offender. He was, however, apprehended by the Ichhra (Lahore) Police on 12-2-1971. In the ,meantime, Muhammad Shafi the complainant was himself murdered on 18-8-'970 allegedly by the appellant and his brothers After the necessary investigation the case relating to the murder of Mst. Rabia was sent up against, appellant.
3. The post-mortem examination conducted on 29-6-1970, at 9 a.m., disclosed the presence a lacerated wound r x is' on the lower and central part of front of the neck, i,e, on the upper part of sternum of the deceased. The injury had been the result of fire-arm and pellet was recovered by the Doctor. The left lung was found congested and pierced by the shot. The death, according to the Doctor, had resulted from cardio-respiratory failure on account of the neck injury, which was sufficient in the ordinary course of nature to have caused the death. The death had been instantaneous. Since there was no blackening on the injury, the Doctor was unable to give the distance from which the shot had been fired but he opined that it had been fired from the front.
4. Apart from the medical evidence which, thus, supported the prosecution case, the mainstay of the prosecution was the ocular testimony of Muhammad Khan (P. W. 5) and Ghulam Nabi (P. W. 6).
Muhammad Khan fully supported the case against the appellant. Ghulam Nabi, however, turned hostile and his statement recorded by the committal Court was transferred under section 288, Cr.
P. C. In that statement, Ghulam Nabi had fully supported the prosecution. Ghulam Rasul (P. W. 7) brother of the complainant, and Karamat Ali (P. W. 8) supported the story of the motive. The appellant's defence was a bare denial. He also denied having absconded and explained that he had remained in Chiniot, District Jhang, and on coming to know that he had been declared a proclaimed offender, he had himself surrendered at Ichhra Police Station. He, however. Led no defence. At the conclusion of the trial, the learned Sessions Judge, Sialkot found the case fully proved against the appellant and consequently he convicted and sentenced him as aforesaid.
5. Before us, it was contended, in the first instance, that the occurrence having taken place in the dark hours of the night, the identification by the witnesses of the appellant as the assailant could not be free from doubt. According to the First Information Report, a lantern had been burning in the courtyard of the complainant at the time of the occurrence. The lantern was, however, not recovered. It is also true that there was no moonlight as, according to the calendar, the moon roseate midnight on the night of the occurrence. But this does not make the identification of the assailant at all difficult, for he was fully known to the witnesses who were his neighbours and who bad at the time of the occurrence heard the appellant uttering abuses and threats. According to Muhammad Khan P. W. The second shot had been fired after about 10 minutes. The witnesses bad, therefore, sufficient time to fully identify the assailant and as such the contention has no merit.
6. As regards the ocular witnesses, we find Muhammad Khan to be a natural witness. He had his house adjoining that of the complainant and had come attracted by the first shot. It was, however, urged that he was an interested witness being related to the complainant whose sister was the wife of the witness's son, and being otherwise on inimical terms with the appellant. Muhammad Khan admitted that he had been bound down for keeping the peace in proceedings initiated by the uncle and father of th0 appellant.
7. The objection to dance of the other ocular witness, namely Ghulam Nabi, was that he eying resiled from his earlier statement was not dependable, and that the trial Court had not given any reason for transferring his evidence under section 288, Cr. P. C. The witness when testifying before the trial Court did not name the assailant "vino had fired the two shots in the result of which Mst.
Rabia had died. He simply stated : "I took it lightly and did not bother to know as to what was its cause". It was upon this that the Public Prosecutor was allowed to cross-examine the witness and his statement made before the committing Magistrate was transferred under section 288, Cr. P. C.
In that statement, as already earlier stated, the witness had fully supported the prosecution case against the appellant. Even during the trial he had virtually owned that statement and bad refuted the suggestion that he had favoured the complainant party before the committal Court because of his being their tenant. The reason why Ghulam Nabi P. W. Did not support the prosecution during the trial is not far to seek. Although he denied the prosecution suggestion that the appellant was a person of desperate character or that he had made the concession on account of fear of him, he admitted that the appellant along with his brother was facing trial for the murder of complainant Muhammad Shafi and that the third brother, Nazir, was absconding in that case. The witness is admittedly a tenant of the complainant but that would not detract from the evidentiary value of his statement. The objections, therefore, raised against this witness have no substance. It was, however, urged that a conviction on a capital charge should not be based on the evidence of the witness who had resiled from his previous statement unless he was corroborated in material particulars.,
8. Learned counsel for the appellant thus stressed the need for strong an independent corroboration to both the ocular witnesses. In this connection he relied', on Haft Ahmad and 2 others v. The State (I), Hakim All v: The State (2) and Muhammad Nawaz v. Abdul Khatiq and others (3). In the first cited case, it was held that where the witnesses are closely related (brothers and mother of the deceased), corroboration would be needed. In the second cited case, it was held that the eye-witnesses being related to the deceased are not to be believed as a matter of caution unless corroborated. In the last cited case, the view taken was that where witnesses are not only related inter se but also with the deceased, their evidence required corroboration. In Suleman Shah v. Ayub etc. (4), their Lordships of the Supreme Court had, however, held that mere relationship of the eye-witnesses with the deceased was no ground for disbelieving their evidence and that in the absence of animus against the accused, their evidence ought to be accepted. Similar view had been expressed in Muhammad Rafiq alias Tital v. The State (5). It is, therefore, clear that there is no inflexible rule of law that a witness who is related to the deceased must invariably be corroborated before his evidence can be relied upon. In the matter before us, therefore, the relationship of Muhammad Khan P. W. With the complainant does not detract from the value of his testimony because there is no particular animus for him to involve the appellant falsely. The factum of security proceedings in which he had been bound down at the instance of the uncle and father of the appellant, is not, to our mind sufficient to constitute such animus. In any case, corroboration is available by the circumstance of the appellant's abscondence for nearly 7 months which circumstances is relevant as held in Gul Hassan and another v. The State (6) and Muhammad Bashir alias Shikra v. The State (7). The evidence of both the ocular witnesses can, thus, be relied upon.
9. The motive, of course, was against Muhammad Shafi the complainant. That motive is well proved by Karamat Ali (P. W. 8). This witness is admittedly a tenant of Ghulam Rasul, a brother of Muhammad Khan P. W. But that by itself would not affect his being an independent witness. The evidence shows that the appellant had directed the shot towards Muhammad Shafi but the shots had missed him and the second shot had hit and killed the deceased. The appellant is liable for her murder in the same way as he would have been had Muhammad Shafi been killed. He was, therefore, rightly convicted. We are unable to interfere in the matter of sentence also because of the absence of any mitigating circumstance.
10. The appeal, therefore, has no merit and is accordingly dismissed. The death sentence passed against the appellant is confirmed. {{FOOT NOTE}}
(1) 1471 SCMR 326 (2) 1971 SCM R 412
(3) 1971 SCM R 500 (4) PLD 1971 SC 751