' This criminal appeal is directed against the judgment dated 31-3-1977 of the learned Additional Sessions Judge by which the appellant is convicted under section 302, P. P. C. And sentenced to imprisonment for life and a fine of Rs, 5,000 or in default of payment of fine to suffer 24 years R. I.
' The amount of fine, if realized, shall be paid to the heirs of the deceased as compensation under section 544-A of the Cr. P. C.
2. The occurrence which is the subject-matter of the charge took place on 14-2-1973 at about 8/9 p. m. When the deceased who was a domestic servant of Muhammad Rafiq complainant was going along with the complainant towards the Ration Depot, when they reached near the house of Nazir P. W. Close to the Depot, the appellant along with four other co-accused, namely Rehmat Beg, Arshad Beg, Azam Beg and Aslam Beg (since dead) suddenly appeared. The co-accused Rehmat Beg raised a lalkara and exhorted his co-accused to catch hold of the complainant and the deceased Aslam Beg (since dead). Arshad and Rehmat Beg grappled with the complainant while Azmat Beg caught hold the deceased and the appellant who was armed with a knife gave a blow in the left lumbar region of the body of the deceased. On receipt of this injury the appellant fell down on the ground. Sardaran, Nazir Ahmad and Aslam P. Ws. Were attracted to the scene. The A.
S. I. P. W. 8 who recorded the statement of P. W. 3 sent the same to the Police Station for the registration of the case where Manzoor Hussain Muharrir P. W. 7 recorded the formal F. I. R. Exh. P. A/I.
A. S. I. Sardar Shah P. W. 8, went to the place of occurrence, recorded the statement of the P. W.
Under section 161, Cr. P. C. And took possession of the blood-stained earth vide memo. Exb. P. B. And made It into a sealed parcel. In the meantime he was informed that the injured person has died. He then again came to the Hospital and prepared inquest report Exb. P M. And sent the dead body to the mortuary for postmortem examination. He arrested the accused.
' The motive of this murder as alleged by the prosecution is that Muhammad Rafiq was running a Ration Depot in Village Chak Jagna and the deceased Dilawar was working as domestic servant in this Depot. The appellant along with co-accused are also residents of Chak Jagna. Akram Beg F/o co-accused Arshad Beg wanted to get the depot cancelled from the name of the complainant and wanted to get its allotment to his name and for this purpose he submitted many applications to the Food Authorities 3/4 days prior to the occurrence. Azmat Beg and the appellant bad a quarrel with Dilawar Hussain deceased.
4. The police while submitting the chalian placed Arshad Beg co-accused in Colemn No, 2 of the challan. Astern Beg died during the proceedings. Arshad Beg had not attacked the deceased and Rehmat Beg was attributed only a lalkara,
5. P. W. 10 is Dr, Muhammad Iqbal who medically examined the deceased and noted the following injuries "Incised wound x r x going deep, vertical, oblique in direction on the back of left lumbar region, 11 medial to the middle line, w above to the highest point of lilacs crest. Corresponding- cut mark was present on the shirt"
' The statement of this witness was transferred to the Sessions file under section 509, Cr, P, C The injury was by sharp-edged weapon and was kept under observation and was caused within one hour of his examination Bah. P. J. Is the carbon copy of the medical report.
6. P. W. 1 is Dr. Sabir Ali, Superintendent, Dispensary Mayo Hospital, Lahore who conducted the postmortem examination on the dead body of deceased on 15-2-1973 at about 4-40 p.m. And found the following injuries on his person : "Stab wound 1/3-4 x 3-4 going deep obliquely placed on the back of the left lumbar region, just below the costal margin and 1/1-2 away from the midline on the back." ' be injury was ante-mortem caused by some sharp edged pointed weapon sufficient to cause death, in the ordinary course of nature. The probable time that elapsed between the injury and death was 12 hours and that between death and post-mortem examination was also 12 hours. Exh.
P. R. Is the carbon copy of his post-mortem report and Exh. P. R .11 is the pictorial sketch of the injury.
7. The prosecution relied on the statement of P. W. 3 who is complainant and the statement is corroborated by the statement of P. W. 12 Muhammad Aslam who had gone to Saudi Arabia and could not be examined in the Court of Session so his statement recorded by the committing Magistrate in the enquiry proceedings was transferred to the Sessions file under section 33 of the Evidence Act. The prosecution also relied on the medical evidence and the motive.
8. The learned Additional Sessions Judge after appraising the evidence acquitted the three other co-accused; the 4th bad died during the pendency of the proceedings and convicted the appellant under section 302, P. P. C. And sentenced to life imprisonment and a fine of Rs, 5,000 and in default of payment of fine to suffer 2} years' R. I. And fine so recovered is to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C.
9. The learned counsel of the appellant has challenged the validity of the judgment on the following grounds (i) That motive is not proved.
(ii) That the statement of P. W. 12 has been illegally transferred to the Sessions filo under section 33 of the Evidence Act.
(iii) That there is no corroboration to the statement of P. W. 3 who is complainant and conviction cannot be maintained on his solitary statement.
(iv) That the same set of evidence has been disbelieved for the rest of three co-accused and same cannot be believed for the conviction of the appellant.
' As far as the motive is concerned the P. W. 3 in his statement before the trial Court has specifically stated that the P. W. 3 was running a Ration Depot in village Jagna for the last 5/6 years prior to the occurrence. Akram Beg father of the co-accused Arshad Beg wanted to get it cancelled from the name of the complainant and was seeking allotment of the same to his name. About 3/4 days prior to the occurrence the appellant along with Azmat Beg alias Aja had a quarrel with Dilawar Hussain deceased. This evidence is sufficient to prove the motive. Even otherwise in criminal cases motive is immaterial if there is direct evidence to prove the guilt. Although in the present case P. W.
3 has specifically stated that the appellant had a quarrel a few days before the occurrence with the deceased and that clearly shows that the appellant had made a fatal attack on the deceased by a knife because the idea was to get the Depot cancelled from the name of P. W. 3 and the deceased was mainly managing the affairs of the Depot. I hold that the learned Additional Sessions Judge has rightly believed the motive and the objection of the learned counsel of the appellant that motive is not proved is unfounded.
10. The learned counsel of the appellant has vehemently argued that the statement of P. W. 12 could not be brought on record because he did not go to Saudi Arabia and he was intentionally not produced in spite of the fact that he was in Pakistan. The learned Additional Sessions Judge relied on the statement of P. W. 5 Foot Constable No, 934 Police Station, Sadar Gujranwala who reported that Muhammad Aslam P, W. 12 is reported to be in Saudi Arabia and there is no likelihood of his repatriation and Exh. P. W. 5-A is the summon of the witness and his report is Exh. P. W. 5/A/1. It is also stated by this witness that the accused are Lambardar of the village. In order to cast doubt on the veracity of the testimony of the witness the defence produced Muhammad Ali D. W. 1 who stated that Muhammad Aslam is living in the village Jagna. The learned Additional Sessions Judge out of abundant caution deputed A. S. I. Police Station, Sadar Gujranwala that he should personally verify the fact and his report C. W. 1/A/1 indicates that he made full efforts to find it out whether he was present or not and he recorded statements of many witnesses of the village and then reported the fact that Muhammad Aslam P. W. 12 had gone to Saudi Arabia and is not available as a witness.
The statement of this A. S. I. Was recorded as C. W.
1. On the basis of this statement the evidence recorded by the committing Magistrate of Muhammad Aslam P. W. 12 was transferred on the file of Sessions Court. It appears that the accused party ate the influential persons of the village being Lambardar and the D. W.
1. Appears to have given wrong statement to please the accused party.
11. Before the evidence of such witness is received under section 33 of the Evidence Act the Court is to satisfy itself that reasonable and diligent search was made for the witness to be made available in the Court. In this case the learned Additional Sessions Judge had deputed the A. S. I.
And his report and his statement is sufficient to satisfy the Court that reasonable and diligent search was made for the witness and on the basis of his statement it was transfer rued to the file of the Sessions Court and his previous statement made before the committing Magistrate is admissible under section 33 of the Evidence Act and has rightly been relied upon. The defence has also produced Exhs. D. B,, D. C., D. D. And D. E. To rebut the evidence, D. E. Is the copy of the et allan form where Muhammad Aslam P. W. 12 was arrested alongwith 13 co-accused on 9-12.74 under section 436/382/148/149, P. P. C. Exhs D. C. Shows the order dated 16.3-77 when the Magistrate was not present and only the Reader has shown that except Muhammad Afzal all the accused were on hail and present. Since this is not a Court order nor individual presence of the accused has been recorded so it cannot be presumed that Aslam P. W. 12 was present on that day. Exh. D. B. Shows the Court order of January 1977 whereas the report of P. W. 5 Foot Constable is dated 1st March 1977 and that of C. W.
1. Is dated 21-3-77. These documents do not support the defence version nor did they prove the presence of P. W. 12 in Pakistan. The learned Additional Sessions Judge has rightly ignored these documents. If the P. W. 12 was actually in Pakistan and was not supporting the prosecution case he could be produced by the defence ; but he has not been produced and merely by submitting the copies of Court orders, the prosecution evidence cannot be disbelieved.
12. The learned counsel for the appellant attacked the veracity of P. W. 3 that he is interested witness because deceased was his domestic servant. The mere fact that the deceased was his servant Is not sufficient to discard the testimony of P. W. 3 nor he could be treated at interested witness unless the defence has further proved that he had a motive to falsely implicate D the accused. P. W. 3 is an eye-witness and he has withstood the cross-examination and his testimony remains unshaken.
13. Under section 134 of the Evidence Act even in a murder case no particular number of witnesses is required for the proof of any fact. The Legislature has not stressed on laying down any such exception to the general E rule recognized in section 134 of the Evidence Act. The section lays down a well-recognized maxim that- "evidence has to be weighed and not counted."
' The Legislature has given statutory recognition to the fact that the administration of justice may be hampered if a particular number of witnesses was to be insisted upon. It is not seldom that a crime is committed in the presence of only one witness. Leaving aside those cases where circumstantial evidence is taken into consideration for the determination of guilt if the Legislature were to insist upon the plurality of witnesses then the cases where the testimony of a single witness in proof of the crime is available would go unpunished. The matter therefore depends upon the circumstances of each case and the quality of the evidence of a single witness whose testimony is to be accepted or rejected. Generally speaking oral testimony in this context may be classified into three categories namely.
(I) Wholly reliable.
(ii) Wholly unreliable.
(iii) Neither wholly reliable nor wholly unreliable. In the case of first category, the Court should feel no difficulty in coming to the conclusion and it may convict or acquit on the testimony of a single witness if it is found above suspicion of interestedness or incompetence. In the second category the Court equally feel no difficulty in coming to the conclusion. It is only the third category where the Court has to look for corroboration in material particulars by reliable testimony of direct and circumstantial evidence.
14. The statement of P. W. 3 in this case is in itself sufficient to convict the appellant i,e, even on the testimony of a single witness but in this case there is not only corroboration of P. W. 12 but also corroboration of the medical evidence, where even the detail of the nature of injury, and its location stands fully corroborated by the medical evidence. It is a settled law that the testimony of a Witness, can be disbelieved on reasonable ground and not on mere speculation or on mere relationship with the deceased. I hold that even in the cases of capital punishment the statement of a single witness, If wholly reliable, It sufficient to warrant conviction under section 302, P. P. C. I, therefore, agree with the learned Additional Sessions Judge that he has rightly believed the testimony of the ocular witnesses and the objection of the learned counsel is devoid of force.
15. The fourth ground of attack is on the credibility of the witnesses whose testimony has been disbelieved in respect of majority of accused. In this connection the learned counsel has strongly relied on Ahmad Khan and another v. The State (1) which says "Witness-Prosecution witness disbelieved in respect of majority of accused- Credibility not divisible so as to be acceptable against one set of accused and rejected against the other."
(I) PLD 1962 Lab. 390
16. On the basis of this principle laid down by the Division Bench of the Lahore High Court, the learned counsel argued that three co-accused have been acquitted because the evidence was disbelieved so the evidence against the appellant necessarily be disbelieved because the credibility is not divisible. The authority cited above does not lay down the law in conformity with the law laid down by the Supreme Court in Tawaib Khan and another v. The State (I) which says as under "The maxim 'falsus in uno faints in omnibus' has all along been discarded by the Courts in this country. Similarly the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of the universal applications. In the last analysis, as stated in some of the eminent judicial decisions, the grain has to be shifted from the chaff in each case, in the light of its own particular circumstances."
' In view of the authority mentioned above, the view taken by the Lahore High Court cannot be accepted.
17. The learned counsel has also relied on Ghulam Muhammad and 2 others v. The State (2). This authority is not relevant because in that case the right of self-defence was pleaded. The facts of that case are entirely different so this authority cannot be pressed into service. The learned counsel has also cited Bagh All and 4 others v. The State (3). This authority is also distinguishable because in that case there was a conflict between the medical evidence and oral testimony and on that ground the appeal was accepted. Their Lordships have made observation at page 326 in the following lines .
"The High Court has unfortunately made no attempt to reconcile these apparent conflicts between the medical evidence and the oral testimony but we are of the opinion that in the face of such glaring conflicts, the oral version of the witnesses could scarcely be relied upon. ..."
' This authority also, has to be distinguished because in the present case the ocular testimony of P.
W. 3 and P. W. 12 stands fully supported by the medical evidence. The reliance can be placed on Syed Mushtaq Ahmad v. Slddiqullah and others (4), where the acquittal was converted into conviction by the Supreme Court and where the prosecution's case rested upon the evidence of two eye-witnesses corroborated by motive and medical evidence. This authority is clearly applicable to the facts of the present case because in this case also the prosecution ease rests on the evidence of two ocular witnesses of impeachable character corroborated by motive and medical evidence. I, therefore, hold that prosecution evidence which has been disbelieved against three co-accused is to be believed avian the appellant and on the appreciation of this evidence conviction has rightly been male.
18. The learned counsel for the appellant has last of all prayed that benefit of doubt be given to the accused. The benefit of doubt can be giver, to the accused only when the doubt arises from the evidence i,e, it is borne out from the evidence and doubt of artificial character which resides more in the mind and is not established by the evidence is not a doubt which is to be considered. This is not a case of giving benefit of doubt, I, therefore, do not agree with the learned counsel of appellant.
(1) PLD 1970 SC 13 (2) PLD 1975 SC 588
(3) PLD 1973 SC 321 (4) PLD 1975 SC 160
19. In view of this I find that there is no force in the contention of the learned counsel of the appellant. The appeal is, therefore, dismissed and the judgment dated 31-3-1977 of the learned Additional Sessions Judge is upheld. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.