JUDGMENT RIAZ HUSAIN, J.- Muhammad Akhtar son of Bashir Ahmad was tried for the murder of Muhammad Yousuf by the learned Sessions Judge Vehari who vide his judgment dated 3.2.1992 convicted and sentenced him to death and a fine of Rs.5,000/- or in default of payment of fine to undergo rigorous imprisonment for one year. He was also to pay an amount of Rs;10,000/- as compensation to the heirs of the deceased or to undergo six months rigorous imprisonment.
2. The convict filed an Appeal No.38/92. The murder reference No.77/92 was also before us for the confirmation of death sentence, We shall dispose of both the matters by this judgment.
3. The prosecution story in brief as narrated in the FIR lodged by Muhammad Younus P.W.6 was to the effect that on 10.1.1990 he alongwith Muhammad Yousuf alias. Allah Ditta deceased and Muhammad Yaqub alias Allah Rakha was going to the house of Muhammad Siddique where the music was playing as the marriage of his son Muhammad Anwar was going to take place on the following day. When at 8.00 p.m. They reached near the land owned by Akbar Ali Bhatti, Muhammad Amin and Muhammad Akhtar appellant suddenly emerged on the scene of occurrence and exhorted that they would avenge their insult. Muhammad Amin took Muhammad Yousuf in his clasp whereas the appellant gave knife blows which hit him on the chin and left side of his chest. The complainant Muhammad Yaqub raised hue and cry which attracted Nazir Ahmad and Amin son of Akbar Ali on the scene of occurrence. Muhammad Yousuf was being taken to Chak No. 19/WB. When he scummed to the injuries.
4. The motive for the occurrence as alleged was that Muhammad Yousuf deceased was challaned in a theft case. He suspected that he was involved on the secret information of the appellant and Amin son of Muhammad Akbar. One day prior to the occurrence Muhammad Yousuf deceased had insulted Muhammad Amin and the appellant. The appellant had issued him the threats of dire consequences.
5. The occurrence of this case took place on 10.1.1990 at 8.00 p.m. In the area of Chak No. 19/WB, Tehsil & District Vehari, near the house of Muhammad Siddique son of Rora resident of the same Chak, 10 miles from P.S. Machiwal, FIR Exh. PF was recorded at 12.15. a.m. On the same night.
6. Aftabullah, Sub-Inspector, PW.9, after recording the FIR reached the spot. He prepared the injury statement Exh. PC and inquest report Exh.PD. He despatched the dead body for autopsy. He secured blood-stained earth vide recovery memo Exh.PH. He got prepared site-plan Exh. PE Exh.
PE/1, PE/2 prepared from the Patwari Halqa. He recorded the statements of the witnesses. He arrested Muhammad Akhtar appellant on 20.1.1990. The appellant while in custody led to the recovery of blood-stained knife Exh. P.6 which was secured vide recovery memo Exh.PG.
7. The post-mortem examination of. The dead body of Muhammad Yousuf was conducted on 11.1.1990 by Doctor Muhammad Abdullah, Medical Officer, DHQ, Vehari at 1.00 p.m. Who found the following injuries:-
1. An incised wound 2.5 cm x 0.5 cm x deep 6 cm from the left nipple and 5 cm from the sternum, in the 5th inter-costal space on the left side anterior of the chest.
2. A contusion 3 cm x 2 cm on the chin left side. The corresponding cut to injury No.1 was present in the clothes.
In his opinion death was caused due to shock and haemorrhage as a result of injury No.1 which was sufficient to cause death in ordinary course of nature. This injury was caused by sharp-edged weapon whereas injury No.2 was caused by a blunt weapon.
8. The prosecution in order to substantiate the allegations produced 10 witnesses in all. P.W.2 Ghulam Rasool escorted the dead body of Muhammad Yousuf to the mortuary. Muhammad Ramzan Patwari Halqa prepared the site plan Exh. PE, PE/1, PE/2 at the instance of the police.
Muhammad Younus PW.6 and Muhammad Yaqub PW.8 furnished the ocular version of the occurrence. They also attested the recovery memo of incriminating knife P.6 and blood-stained earth.
9. The appellant when examined professed innocence and stated that he was involved due to enmity with the eye witnesses. He did not opt to make a statement. However, he produced Muhammad Yaqub as DW1.
10. Learned counsel for the appellant submitted that the eye-witnesses were not only closely related to the deceased, they were also inimical to the appellant. Further submitted that Muhammad Amin son of Akbar Ali and Nazir Ahmad who were independent witnesses were not produced with the result that there was un-corroborated testimony of interested witnesses in the field. It was also argued that the prosecution failed to prove motive and recovery of incriminating knife P.6 It was contended that the deceased was involved in many criminal cases. He had many foes and the possibility of his being killed by some one else could not be ruled out. It was urged that the presence of the eyewitnesses at the relevant time was not believable as there was no marriage function on that day. It was also urged that on 10.1.1990 at 8.00 p.m. The night being dark it was not possible for the witnesses to identify the appellant. It was lastly argued that when the learned trial Court found Muhammad Amin son of Akbar Ali innocent, it was not lawful to convict the appellant on the same evidence.
11. Learned Assistant Advocate-General repelled the arguments of the learned counsel for the appellant and supported the judgment of the trial Court.
12. We have scrutinised the evidence available on the record and heard the learned counsel at length.
13. The eye-witnesses have successfully explained their presence at the relevant time at the place of occurrence. It was not uncommon that when some wedding was in offing, music was played and the people in order to enliven themselves did attend such functions heartily. In Riasat Ali Vs. The State (PLD 1991 S.C. 397), their lordships observed as follows:- "It would suffice to say mat even if a chance witness, his explanation regarding what he wanted to do at Railway Office being acceptable the so called stigma of being a chance witness loses significance. The argument of the learned counsel that the Railway Office was closed, therefore, the witness should have been declared as having perjured himself is also without much force. The witness had gone to the Railway Station to get a seat reserved for Karachi. There is nothing to show that this was impossible to achieve."
They have corroborated each other on all material points. Their evidence is further corroborated by the medical evidence and recovery, of incriminating knife P6. They were cross-examined at length but the defence could not elicit anything in its favour. Their evidence could not be brushed aside merely for the reason that they were closely related to the deceased especially when they had no personal animus against the appellant. In Abdur Rashid Vs. Umid Ali & 2 others, (PLD 1975 S.C. 227), it was observed that:- "The next important point which really forms the crux of the matter is the question of the credibility of the three eye-witnesses, namely, Abdur Rashid (P.W.8), Aurangzeb (P.W.9) and Muhammad Nazir(P.W.10).P. Ws.8 and 10 were the brothers of Babu Faqir Muhammad while P.W.9 was the Kamdar of Doctor Tahir Hussan Siddiqi and as such they certainly had close interest in the deceased. In view of the established rivalry between the parties and clash of interest over land, the witnesses were not wholly disinterested. It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inflexible rule to be rigidly and unexceptionally applied."
13. There is nothing on the record that the witnesses were involved in criminal cases. They were also not privy to the criminal activities of the deceased. It is in evidence that PW8, who is the real brother of the deceased, stood surety only once for him in a certain case. Viewed in this backdrop, it will be absolutely difficult to presume that they would substitute the present appellant for the real culprit.
14. Muhammad Amin, who was named in the FIR, was declared innocent by the police and was not sent up by it to face trial. He had not caused any injury to the deceased. It was no rule of universal application that when a certain accused was found innocent by the Court, the other accused would ipso facto stand acquitted. The Court has to sift the grain from the chaff.
15. We are of the opinion that the learned trial Court rightly observed that on 10.1.1990 at 8..00 P.M. It was the 13th of lunar month and obviously there was sufficient light. It was also deposed by the witnesses that the electric light was available as the marriage of Muhammad Anwar son of Muhammad Siddique was going to take place on the following day. Even otherwise the eye- witnesses were at a distance of about one karam and since they were known to each other, therefore, there was no question of mistaken identity.
16. The recovery of knife P6 cannot be discarded simply for the reason that its recovery memo was attested by the eye-witnesses. It is pertinent to note here that the same was attested by Aftabullah Sub-Inspector PW9 as well, against whom no enmity was suggested.
17. DW1 Muhammad Yaqub did not vouch for the innocence of the appellant. His deposition was that the eye-witnesses and the deceased were not invited by him to relish the music. He, however, admitted that the appellant be longed to his brotherhood and conceded that music was playing in his house and further stated that the people did come to enjoy it even uninvited.
18. In these circumstances, we hold that the prosecution has been able to prove the case against the appellant beyond the reasonable doubt.
19. Now comes the question of quantum of sentence. Appellant Muhammad Akhtar and Muhammad Amin son of Akbar Ali had been transmitting the secret information about criminal activities of the deceased for the last many years. Therefore, it will be difficult to hold that for that matter, the deceased took strong exception and enraged the appellant to the extent that he murdered the deceased. There is no evidence with regard to the immediate cause and the explanation for that could be two-fold. First, either the prosecution did not know what led to the fight, or the prosecution was not prepared to disclose the true facts about this aspect of the case.
In either way, its benefit must go to the appellant. It also appears that the appellant inflicted a single knife blow to the deceased and did not repeat his overt act.
20. Pursuant to the above discussion, the appeal is dismissed. However, we decline to confirm the death sentence of the appellant; the same is commuted to life imprisonment but we maintain the sentence of fine of Rs. 5000/-, in default whereof the appellant shall undergo R.I. For one year further. The appellant shall also pay the sum of Rs. 10,000/- to the legal heirs of the deceased Muhammad Yousaf or in default shall undergo six months simple imprisonment, as ordered by the trial Court. The appellant shall also be given the benefit of Section 382-B Cr.P.C.
21. The death sentence is not confirmed.