' Muhammad Arif son of Ahmad and Muhammad Aslam alias Achhu son of Fazal Din appellants have been convicted under section 302/34, P.P.C. And sentenced to life imprisonment and a fine of Rs,20,000 each, in default of payment to further undergo two years' R.I. Each and if the fine realized, shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. The appellants were given benefit of section 382-B, Cr.P.C. By the learned Additional Sessions Judge, Lahore vide judgment, dated 15-11-1992 in case F.I.R. No,40/1991 under section 302/337-(iii)/337-A(i), P.P.C.
Registered with Police Station Kahna.
2. Briefly the facts of the prosecution as narrated in the F.I.R. Are that Mst. Ghulam Fatima P.W.
Lodged report that on 23-1-1991 at 8-00 p.m. She along with her husband Muhammad Sharif, Farzand Ali and Inayat Ali P.Ws. We're sitting in the house of Talib Hussain, when Allah Din and Fazal Din sons of Boota armed with Dangs, Muhammad Aslam alias Achoo son of Fazal Din armed with Takwa and Muhammad Arif armed with Dang came to the house of Talib Hussain and abused him.
Fazal Din and Allah Din raised Lalkara that Talib Hussain be done to death whereupon Muhammad Aslam alias Echo accused landed a Takwa blow on the right side of his head, who fell down on the ground. Arif appellant gave Dang blow on the head of Talib Hussain in the fallen condition. Mst.
Ghulam Fatima along with her husband Muhammad Sharif and father Muhammad Din stepped forward to rescue Talib Hussain, her brother whereupon Allah Din gave Dang blow on right wrist of Mst. Ghulam Fatima. Fazal Din co-accused gave injuries with Dang on the person of Muhammad Sharif. Arif and Aslam accused also inflicted injuries with their weapons.
3. The motive for the occurrence, as stated, was that of inheritance of Muhammad Shafi who had expired 12/13 years prior to the occurrence and left behind him three daughters; one of them Mst.
Perveen was married to the complainant's brother Talib Hussain deceased. The said Mst. Perveen died seven years after the marriage and the second daughter of Muhammad Shafi, Mst. Munawar was married with the deceased; allegedly, the real brother of Muhammad Shafi namely Fazal Din and Allah Din, real uncles of the deceased and the complainant (since acquitted accused) being in possession of the land did not give share to the daughters of said Muhammad Shafi.
4. The prosecution in support of its version examined as many as seven witnesses; the accused charged under section 302/337(iii)337-A(i), P.P.C.; the learned trial Judge acquitted Allah Din and Fazal Din accused of the charge against' them on the basis of doubt and convicted the appellants as aforementioned.
5. Doctor Hafeez-ur-Rehman appeared as P.W.1 who conducted the postmortem examination of the dead body of Talib Hussain deceased. He found following injuries on his Person:--
(1) Swelling 10 c.m. x 8 c.m. On the right side of head 2 c.m. Above right ear 4 c.m. Above right eyebrow. 7 c.m. From the midline of the skull;
(2) Swelling 6 x 5 c.m. On the left side of head 3 c.m. From mid line 5 c.m. Above the left ear.
' In his opinion, injuries ' were ante-mortem, caused with blunt weapon and cause of death of the deceased was that the injury leading to fracture of skull, brain damaged intracranial hemorrhage and shock. Both the injuries were sufficient to cause death in the ordinary course of nature.
6. Doctor Saqib Naeem P.W.2 medically examined Mst. Ghulam Fatima injured on 24-1-1991 at 2-00 p.m. And found the following injuries on her person:-- Abraded swelling 3 x 2 c.m. Right frontal region of head. Abrasion 2.5 c.m. x 1 c.m. On back lower part of right forearm. Contused swelling 4 c.m. x 2 c.m. Outer lower right leg. Contused swelling 4 c.m. x 2 c.m. Back mid left chest. All the injuries were simple in nature.
7. On the same day at about 2-10 p.m. He examined Mst. Ghulam Fatima P.W. And found following injuries on her person:--
(1) Contused swelling 10 x 6 c.m. On back lower part of right fore-arm and wrist (advised X-ray).
(2) Swelling 8 x 5 c.m. Back right hand.
(3) Complaint of pain back right lower thigh.
(4) Complaint of pain on left scapular region.
' Injuries Nos.1 and 2 were kept under observation for X-Ray. Rest were simple. On 7-4-1991 injuries Nos.1 and 2 were declared as grievous and simple respectively. The P.W. Also examined on the same day Muhammad Sharif and Muhammad Din and had found four and three injuries on their persons respectively. All the injuries were found simple in nature. P.W.3 Younas Ali Shah, Draftsman prepared site plan Exh.P.E. And Exh.P.E./1. P.W.4 Muhammad Akram escorted the dead body of the deceased to the mortuary and produced last worn clothes of the deceased Exh.P.1 and Exh.P.2.
P.W.5 Mst. Ghulam Fatima, the complainant has furnished the ocular account of the occurrence.
P.W.6 Farzand Ali was an eye-witness of the occurrence. He was declared hostile and P.W.7 Muhammad Zaman S.I. Had investigated the case and submitted the challan before the Court.
Muhammad Sharif husband of P.W.5 Ghulam Fatima and Muhammad Din father of the deceased who were cited as P.Ws. Were given up being dead and that of Inayat P.W. Brother of P.W.6 Farzand was also given up as won over and Mehmood Ahmad, Constable was also given up being unnecessary.
8. The appellants convicts made their statements under section 342, Cr.P.C. And denied the prosecution case in totality and claimed to be involved falsely and adopted the plea that P.W.5 Mst.
Ghulam Fatima being a quarrelsome woman brought false charges against them all in connivance with the local police as in fact the deceased had suffered an injury by way of accident.
The accused neither produced any witness in defense nor they appeared as their own defence witnesses under section 340(2), Cr.P.C. However, Muhammad Aslam appellant convict produced copy of an affidavit of given up P.W. Inayat as Exh.D . A . And Exh.D.A./1.
9. Learned counsel for the appellants convicts contended that the learned trial Judge erred in relying on the solitary statement of P.W.5 Ghulam Fatima; her statement was not corroborated by any piece of evidence; ignored the material contradictions in the statements of P.W.5 Ghulam Fatima and P.W.7 Muhammad Zaman, Investigating Officer; her evidence was contradicted by the medical evidence; even the learned trial Judge disbelieved her evidence as did not convict those accused who caused qua her own injuries; further the motive was not proved as the natural witnesses Mst. Munawar Begum widow of the deceased and sister-n-law Mst. Seeman Bibi were neither associated with the investigation nor produced as P.Ws.
10. Learned counsel for the State conversely controverted the arguments advanced by the learned counsel for the appellants by contending that P.W.5 Mst. Ghulam Fatima's statement is confidence inspiring and is an independent witness; her husband and father (since dead) and herself were injured at the spot and is only alive eye-witness of the occurrence. It is lastly contended that the discrepancies and contradictions in the evidence of P.W.5 and P.W.7 are not material to be proved fatal to the prosecution case.
11. I have heard the arguments advanced by the learned counsel for the parties at length and have gone through the evidence on record minutely with their able assistance.
12. The main legal issue which arises out of the appeal in hand and vehemently argued by the learned counsel for the appellants is whether in the absence of some independent evidence, can the solitary statement of P.W.5 Mst, Ghulam Fatima be relied upon who is not only the interested witness but her evidence has been discarded against those who allegedly caused qua her own injuries.
13. Admittedly, P.W.5 Ghulam Fatima is the real sister of the deceased, their father Muhammad Din P.W. (since dead) was real brother of Fazal Din and Allah Din (since acquitted), the aforementioned Muhammad Din, Fazal Din and Allah Din are the real brothers of Muhammad Shafi who is the father-in-law of the deceased Talib Hussain whose two daughters were married with the deceased as aforementioned and dispute of inheritance is involved. The appellants/Convicts are sons of said Ahmad Din and Fazal Din respectively and are first cousins of the deceased as well as of P.W.5 Mst.
Ghulam Fatima. Farzand Ali P.W.6, the declared hostile witness is also first cousin of the deceased as well as of the appellants/convicts. The given up P.W. Inayat is real elder brother of the hostile witness: It is worth noting that P.W.5 Ghulam Fatima has got neither any brother nor sister but is left alone after the death of her husband and father P.Ws. In this background of the family and circumstances, the facts are to be analyzed and seen to what extent the evidence of P.W.5 Ghulam Fatima is to be relied upon. The contention of the learned counsel that there are material contradictions in the statement of P.W.5 Ghulam Fatima vis-a-vis P.WP Muhammad Zaman, Investigating Officer pertaining to recording of F.I.R., production of Mst. Munawar Bibi by P.W.5 Ghulam Fatima before P.W.7 Muhammad Zaman, sending of dead body to the mortuary and the learned trial Judge rightly observed that the contradictions raised before him and contested now in fact are not so material and fatal to the prosecution case; merely on the ground that the names of P.Ws. We're not mentioned in the inquest report and concession given by P.W.4 Muhammad Akram, Constable that he escorted the dead body from Police Station Kahna.To mortuary create any doubt about the occurrence; as the accused with specific role were nominated in the F.I.R.
Which was lodged promptly with the minimum possible period. The facts of the case Asghar Ali and 3 others v. State PLD 1986 Lah. 118 relied upon by the learned counsel for the appellants are not attracted to the facts of the case in hand.
14. The contention of the learned counsel that the P.W.5 Mst. Ghulam Fatima being the real sister of deceased is an interested witness, her statement was not relied upon even against those accused who caused qua her own injuries is misconceived; the learned trial Judge observed that the injuries attributed to Fazal Din accused could not be proved because Sharif P.W. Had expired and had not deposed before the Court that he was injured by Fazal Hussain and Allah Din accused; further observed that Allah Din accused was an aged man of about 70/72 years; could hardly walk because of his defective eyesight and there was no occasion for him to come with Dang at the spot; Mst. Ghulam Fatima P.W.5 was in fact injured by the appellants; she named them so that they may not remain outside to persue the case of their son in the circumstances the occurrence took place. The learned trial Judge, otherwise in view of the demeanor of the witness in lengthy cross- examination observed that her evidence could not be disbelieved as she was an honest and responsible witness. I endorse observation made by the learned trial Court. The manner her brother was murdered, her husband and father were injured and even she was not spared while saving her deceased brother and injured father, naturally might have nominated the other accused as a revenge. So far as the evidence against the appellants is concerned,was believed as trustworthy and confidence inspiring. Learned counsel for the appellants relied on Ghulam Murtaza v. State PLD 1989 Kar. 293 wherein it was held that:-- "It may also be added that in a case of murder to award death sentence i,e, life imprisonment (Qisas); it is necessary under the Qur'an and Sunnah that two adult male witnesses of unquestioned integrity be produced in evidence for proof of the evidence."
15. Learned counsel contended that independent witnesses were available at the spot as had gathered at the alarm of the P.Ws. As alleged in the F.I.R. But the prosecution has miserably failed to produce two adult male witnesses of unquestioned integrity and argued that P.W.6 and his brother Inayat were independent witnesses; the evidence of P.W.6 Farzand Ali was not relied on merely being a hostile witness and that of Inayat P.W. As he was given up as won over and relied on case reported Muhammad Luqman v. State 1989 MLD 1708; wherein it was observed that:-- "Mere declaration of a witness as hostile at the request of the prosecution or permission by the Court to the prosecution to cross-examine the witness, does not and should not detract from credibility of such witness, such declaration does not warrant entertaining of doubt about veracity and evidentiary value of the statement made by a witness."
16. The contention of the learned counsel has no force as two adult male witnesses were mentioned in the F.I.R., their statements were recorded under section 161, Cr.P.C. And would have proved under the circumstances as witnesses of unquestioned integrity being closely related to all the accused; having no previous enmity or motive to involve them innocently; unfortunately expired after the submission of challan. No fresh P.W. In the circumstances could be brought on record. In the circumstances of the case in hand, the provisions of Article 17(2) of the Qanun-e- Shahadat Order, 1984 are attracted which provide that the Court may act on the evidence of one male or female witness. True, the evidence of a hostile witness, as contended by the learned counsel for the petitioner, should not he detracted from credibility. However, it is the duty of the Court to assess and appraise the entire evidence of such a hostile witness to see whether any part of his evidence is worthy of belief in the light of other evidence; the evidence of hostile P.W.6 Farzand Ali is not trustworthy and confidence inspiring in the peculiar circumstances of the case; further being first cousins of the appellants and real nephew of the acquitted accused, Fazal Din and Allah Din cannot be taken into consideration as an independent evidence.
17. The contention of the learned counsel for the appellant/convicts that the prosecution has not proved its case beyond reasonable doubt is indeed forceful.
It is a settled principle of law that it is the abandoned duty of the prosecution to prove its case beyond doubt and this duty does not change or vary in a case in which any defense plea is taken and conviction on statement of an interested and inimical witness is contrary to rule of safe administration of justice in criminal cases. In case Falak Sher etc. v. State 1985 AC 538 relied upon by the learned counsel, it was observed that:-- "Ocular evidence which is not acceptable qua acquitted accused cannot form basis for conviction of other accused." ' and in case Sanwal Shah v. The State 1985 PCr.LJ 955 wherein it was observed that:-- "Conviction on uncorroborated testimony of complainant which is pregnant with numerous infirmities and contradictions cannot be made basis of conviction."
' On the other hand, their Lordships of Supreme Court in case Muhammad Nawaz and others v. The State 1969 SCMR 131 observed that:-- "Witness found to be false in part cannot be disbelieved in whole."
' In case Muhammad Parvez v. State 1993 SCMR 2185 their Lordships observed that:-- "If is true that on the same ocular evidence the trial Court acquitted the co-accused Muhammad Nawaz in the case but this does not mean that the ocular evidence was found to be false and as such it could not be relied upon for sustaining the conviction and sentence of appellant in the case.
Where there are more than one accused persons in a criminal case, the Court in order to ensure the safe administration of justice undertakes the process of sifting of evidence in order. To eliminate the possibility of involvement of innocent persons in the case by the complainant side. In this process, if the Court extends the benefit of doubt to some of the accused persons in the case it is only with a view to enforce the principles of safe administration of justice in criminal cases and it is not correct to say that in such a case the Court by implication holds the ocular evidence in the case as false. No such implication about falsity of ocular evidence in the case therefore, arises if some of the accused persons are let off by the Court giving them the benefit of doubt. In the present case, the trial Court while acquitting the co-accused Muhammad Nawaz observed as follows:--
(18) From the facts stated above, it is clear that the prosecution has not been able to prove the case against accused Muhammad Nawaz. As such he is given benefit of doubt and is acquitted.
He is present on bail and his bail bond stands discharged'.
The above observations cannot be interpreted to mean that the ocular evidence in the case was held to be false. We are, therefore, of the view that the ocular evidence in the case, if it was found consistent and confidence inspiring against the other co-accused (appellant), could validly form the basis of conviction of the appellant. Both, the trial Court as well as the High Court, found that the ocular evidence in the case inspired confidence."
18. The contention of the learned counsel that the solitary testimony of P.W.5 Ghulam Fatima being not trustworthy is not tenable and is without force. Mere interestedness of the witness being real sister of the deceased is not a ground to reject the evidence of the eye-witness who was also injured because firstly her presence during the occurrence cannot be doubted and secondly injured P.W. Witnessed the murder of real brother, injuries caused to her husband and father and even to herself in their own house; in the circumstances she could be the last person to leave the culprits and implicate others like her real uncles and cousins falsely with whom had no enmity or motive by all.
19. In case Aneel Phukan v. State reported as 1993 SCMR 2236, the Supreme Court of India observed wherein the case primarily hinged on the testimony of a single eye-witness like the case in hand that:-- "Indeed, the conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability.
So long as the single eye-witness is wholly reliable witness the Courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the Courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the Courts find that the single eye-witness is a wholly unreliable witness that his testimony is discarded in to and no amount of corroboration can cure that defect."
20. The same view has recently been observed by the Peshawar High Court in case Faiz Ullah v.
State 1995 PCr.LJ 511 that:-- "If the evidence of a sole witness is found to be worthy of credence, true and reliable even the conviction can be maintained."
21. The motive cannot be doubted only on the ground that either Mst. Munawar widow of the deceased or his sister-in-law who had to inherit the property of their late father Muhammad Shafi was not associated with the investigation or produced as prosecution witnesses. The version in this respect is sufficient which otherwise could not be doubted from the statement of the witness itself.
Even otherwise, motive appears to be natural. The learned trial Judge after observing the demeanor of the P.W.5 in lengthy cross-examination rightly observed that the evidence of P.W.5 could not be disbelieved as she was an honest and responsible witness and was not a chance witnessIn the male dominated society like in the area of occurrence, no one comes forward in aid of a female particularly in the circumstances where the issue of inheritance of ancestral property is involved. After the death of her husband and father, P.W.6 Farzand Ali without any doubt had joined hands with the appellant/accused's cousins; the hostile P.W.6 Farzand did not state anything about the occurrence but made an effort to introduce new factor that he saw the deceased lying dead on the road. The evidence of P.W.6 is- of doubtful nature and there is no other direct evidence to support his version as contended by the learned counsel for the appellant. Hence is totally unreliable and not trustworthy in the light of case reported as 1993 SCMR 2405.
22. In view of the above discussion, there is no force in this appeal and which fails d is hereby dismissed. The conviction and sentence awarded by they learned trial Court is maintained.