FAZAL ILAHI KHAN, J.---This criminal appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan is directed against the judgment of the learned High Court, Circuit Bench, Multan dated 2-3-1993 in State Criminal Appeal No. 1395 of 1980; whereby the judgment of acquittal of the learned Additional Sessions Judge dated 28-7-1980 was partially allowed and the appellant was convicted under section 302, P.P.C. And sentenced to life imprisonment and a fine of Rs. 10,000 in default to further to year' R.I. The fine if realised was ordered to be paid to the heirs of the deceased.
2. Muhammad Asghar Khan (P.W.6), who lodged the report on 3-7-1979 at 9-30 p.m. Stated that Abdul Qayyum his son (deceased) had gone to the hotel of Muhammad Nawaz to take his tea while he himself stayed in front of his Dera on the road-side. Wall Muhammad was also staying with him. He saw Tufail and Saleem, acquitted accused, who passed through them went towards the hotel of Muhammad Nawaz. After some the he heard an alarm from the direction of the hotel which attracted him and his companion Wall Muhammad to the spot. When he reached there he saw Khadim Hussain, Sher Muhammad and Ali Muhammad P. Ws. Standing by the side of Qayyum, deceased, who was lying injured. Abdul Qayyum was in complete senses who on enquiry stated that Abdul Ghaffar armed with Chhuri and Saleem and Tufail both empty-handed surprised him when he was sitting in the hotel at the Lalkara of the applecart that he would not spare him (deceased). He started running and in that process he was given a Chhuri blow by Abdul Ghaffar on his left hand. The acquitted accused caught hold of him from his arm where after Abdul Ghaffar stabbed him. It was further stated that some days before the occurrence Abdul Qayyum deceased had belaboured both Abdul Ghaffar and Tufail, the acquitted accused.
3. Muhammad Yaqoob Niazi, S.I. (P.W.7) after recording the report rushed to the spot alongnwith complainant and took into possession the dead body of Abdul Qayyum from the front of his Dera.
He prepared the injury sheet and inquest report of the deceased and sent the dead body for post- mortem examination. He also prepared site plan, took into possession blood-stained earth, sealed into a parcel and recorded the statements of the P.Ws. The statement of Nawaz Hotelwala was recorded on 5-7-1979. He arrested Saleem accused while Abdul Ghaffar and Tufail accused were produced to him by Farzand Ali Lambardar. The appellant at the the of his arrest also produced blood-stained Chhuri P.3 which was taken into possession vide memo. Exh.PA and sealed into a parcel which was handed over to Moharrar for safe custody in the Malkhana.
4. On completion of the investigation when the complete challan was put in the Court of Additional Sessions Judge, Multan the accused having denied the charge were put on trial. Prosecution in support of its case relied on the oral dying, declaration of the deceased, the ocular evidence furnished by Muhammad Asghar (P.W.6), Sher Muhammad (P.W.8), Muhammad Nawaz, (P.W.9) and Ali Muhammad (P.W.10). Medical evidence, recovery of dagger from the accused, the motive and recovery from the spot were further relied upon providing corroboration to ocular version.
5. The learned Additional Sessions Judge vide his judgment discarded the statements of Sher Muhammad and Ali Muhammad P. Ws. On the ground of their presence at the spot was not found proved beyond any reasonable doubt. Similarly the presence of Nawaz (P.W.9) was also doubted at the the of occurrence. It was further observed that some shops in the vicinity were open at the relevant the but none of those shopkeepers have appeared in support of the prosecution case. The recovery also stated to be doubtful and on such tentative assessment of the prosecution evidence acquitted the accused.
6. In appeal filed by the State the learned High Court on reappraisal of the evidence set aside the judgment of acquittal of Abdul Ghaffar. He was found guilty of the murder of Abdul Qayyum beyond any reasonable doubt and on conviction sentenced him as stated above. As other co- accused have not been attributed any positive role, therefore, their acquittal was maintained extending the benefit of doubt in their favour. Hence this appeal.
7. We have heard the learned counsel and perused the record. In the instant case the learned High Court on proper appraisal of the evidence has held that the learned Additional Sessions Judge has misread the evidence and mis---appreciated the same on extraneous grounds which have no material bearing on the prosecution evidence. Admittedly the occurrence took place in the vicinity of the hotel run by Muhammad Nawaz (P.W.9). He is a disinterested witness and stated on Oath that he was present in his hotel/tea-stall in Moza Kukar Hatta, when Abdul Qayyum, Ali Muhammad, Sher Muhammad and Khadim Hussain arrived at his hotel and placed order for tea.
He started preparing the tea while they got their seats on a bench. After some the Abdul Ghaffar accused armed with Chhuri, Saleem and Tufail empty-handed arrived there. Abdul Ghaffar accused raised a Lalkara that Abdul Qayyum would not go un-escaped. At this Qayyum started running. Abdul Ghaffar inflicted a Chhuri blow which hit the left palm of Abdul Qayyum. He started closing his shop and when he closed his shop Qayyum had fallen on the ground. He was cross- examined but nothing has been brought on record to prove that he was either on friendly terms with the deceased or inimical to the accused. He is totally disinterested witness and has given a straightforward statement supporting the prosecution case. This witness has further stated that Abdul Qayyum deceased fell down at a distance of 8-9 Qadam from his hotel. The statement of this witness was discarded by the learned Additional Sessions Judge' on surmises and conjectures.
Discarding his statement the learned Additional Sessions Judge has given no cogent reason and his observation that his statement was recorded after 2 days of the occurrence, therefore, it appears that he was not willing to support the prosecution case, is highly conjectural. The learned High Court was, therefore, perfectly justified in basing reliance on the statement of P.W. Nawaz.
8. Having found that Nawaz P:W. Was present and has witnessed the occurrence led us to believe the presence of other 2 P.Ws. Namely Sher Muhammad and Ali Muhammad (P.W.8 and P.W.10, respectively). Both these witnesses have fully supported the prosecution case. The observation of the learned Additional Sessions Judge in discarding their evidence that they are chance witnesses is not sustainable as they had come to the hotel for taking their tea as stated by Nawaz P.W.
Therefore, in presence of positive evidence of their presence, their statements were wrongly excluded by the learned Additional Sessions Judge.
9. It is highly regrettable that the learned Trial Judge discarded the evidence of recovery and held that the witnesses were contradictory in their statements as one has stated that the deceased was stabbed with a Chhuri while the other has stated that he was given a Chhura blow and it was held that Chhura and Chhuri are to different weapons. Similar is the observation of the learned Trial Judge with regard to the landing of the stab injury on the person of the deceased. Though there appears to be no contradiction whatsoever in the ocular and the medical evidence from reading of the record.
For the reasons stated above we find no infirmity in the judgment of the learned High Court in reaching the conclusion from the available record that the prosecution has proved its case beyond any reasonable doubt against the appellant. We, therefore, found no merit in this appeal and dismiss the same.