' SH. RIAZ AHMED, J.---This appeal through leave of this Court is directed against the judgment dated 6-11-1994 whereby an appeal filed by the appellant calling in question the sentence of death awarded to him was dismissed, but the death penalty was altered into imprisonment for life.
However, the sentence of fine imposed upon the appellant was maintained.
2. Appellant Muhammad Sarwar, his father Sultan, Muhammad Sharif, Muhammad Zaman and Muhammad Bashir were tried by an Additional Sessions Judge at Gujrat on a charge under section 302/109/34, P.P.C. For having committed the murder of Muhammad Ashraf deceased. On the statement of the complainant Fazal Hussain the police vide F.I.R. No,174 dated 27-5-1989 registered a case, but at that time according to the complainant, due to perplexed state of mind, he could not name Sharif as one of accused. As far as Bashir co-accused was concerned, the complainant stated that he named him in the supplementary statement. The local police after investigation got Zaman and Sultan discharged. Sharif accused was not made to join the investigation and the police only sent up appellant Sarwar and Bashir to stand their trial. Constrained by such investigation, the complainant Fazal Hussain then filed a private complaint naming appellant Sarwar and 4 others named above alleging that in pursuance of a conspiracy, Muhammad Ashraf deceased was killed by the appellant. After recording preliminary evidence in the complaint, all the accused were summoned to face the trial. The prosecution case as narrated by the complainant was that on 27-5-1989, the fateful day at 6-30 a.m., the complainant accompanied by his brother Muhammad Ashraf, Arshad Ali and Muhammad Bashir were proceeding from their village to Gujrat Town. At that time Muhammad Ashraf was 100 yards ahead of the complainant and as soon as Muhammad Ashraf reached near the bridge on Rajbah 13-R within the area of Nagrianwala, suddenly from the cluster of Kikkar trees, Sarwar appellant and Muhammad Zaman armed with 12 bore guns emerged and raised Lalkara that they had come to teach a lesson for insulting Mst.
Inayat Begum. According to the complainant, Muhammad Zaman fired a shot aiming Muhammad Ashraf as the target. But the fire missed. The second fire was shot by the appellant, which hit the deceased Muhammad Ashraf on the right side of his mouth and on receipt of this injury Muhammad Ashraf fell down. The complainant ran towards his injured brother while the two co- accused firing ran away from the scene of occurrence. Muhammad Ashraf succumbed to his injuries at the spot.
' The motive for the commission of the crime as narrated by the complainant was that 5 days before this occurrence, an altercation had taken place between Mst. Inayat Begum wife of the appellant and Anwar, brother of Muhammad Ashraf deceased. This altercation had annoyed the complainant side and thus the appellant conspiring with others had killed Muhammad Ashraf deceased.
3. Out of the challan and the complaint case, in accordance with law the complaint case was tried first. Vide judgment dated 14-7-1991, the learned Additional Sessions Judge at Gujrat found only appellant Sarwar guilty on the said charge and thus he was convicted and sentenced to death and to pay fine of Rs,50,000 or in default thereof to suffer further R.I. For a term of 5 years. The learned trial Judge also directed that in the event of the recovery of fine, half of it shall be paid to the legal heirs of the deceased.
4. The appellant assailed his conviction through filing of appeal while the Additional Sessions Judge also referred the case to the High Court under section 374, Cr.P.C. Vide order impugned dated 6-2-1994 the appeal preferred by Sarwar appellant was dismissed, but his sentence of death was reduced to imprisonment for life. The sentence of fine was maintained. Vide orders dated 17-4-1995 leave was granted to the appellant to reappraise the evidence on account of certain contradictions in the prosecution evidence.
5. With the assistance of the learned counsel for the parties, we have carefully gone through the evidence on record. To prove its case at the trial, the prosecution placed reliance upon the testimony of complainant Fazal Hussain, Arshad Ali and Muhammad Bashir. In addition thereto, the medical evidence and the evidence as to motive coupled with recovery of gun at the instance of the appellant were also relied upon as corroborative pieces of evidence. It was argued before us that according to the testimony of three eye-witnesses the appellant was alleged to have fired only one shot with 12-bore gun hitting the deceased, but such ocular testimony stood contradicted by the medical evidence inasmuch as Dr. Rashid Tahir P.W. 8 stated that he had noticed two injuries on the person of the deceased, which were the result of two different fire shots. It was also urged before us that according to the medical evidence, stomach of the deceased was empty and it could not be believed that the deceased had not eaten anything in the morning before proceeding to Gujrat Town where he used to work as a labourer. It was further contended that the ocular testimony in this case was tainted inasmuch as there was previous enmity between the parties regarding the murder of Inayat, a brother of the complainant and in the said murder case, Hanif, a relation of the acquitted co-accused was challaned. The learned counsel drew our attention to the fact that the prosecution had failed to prove the motive as alleged by it inasmuch as no witness was produced to substantiate the factum of insult of Mst. Inayat Begum.
6. We have considered all these contentions very carefully and have also perused the evidence on record. The claim of the eye-witnesses was that they were proceeding to Gujrat from their village to earn their livelihood and on their way near the bridge of Rajbah 13-R in the village Nagrianwala the attack was launched upon them. The narration of events in the manner as stated by the eye- witnesses is natural since they were labourers and had to earn their livelihood by visiting the town, therefore, they had to proceed in the early hours in the morning to do some work in Gujrat. Despite their lengthy cross-examination, the defence failed to elicit anything or any circumstance so as to belie the situation in which all the eye-witnesses had proceeded together to Gujrat when on the way the occurrence took place. As far as contradiction between the ocular and medical evidence is concerned, no significance can be attached to it. In such like cases, when the attack commences, it also shocks the onlookers. In such state of mind, keeping in view the human nature and conduct, it is difficult to expect the narration of events by such onlookers with mathematical exactitude. In the circumstances of the present case, a shot was fired from a 12-bore gun and the proximity of injuries on the mouth is such that two injuries could have easily been caused with two pellets. It is impossible to believe that one gunshot cannot cause two injures. In this view of the matter, we repel the contention raised by the learned counsel for the appellant.
7: No doubt with the passage of time to seek corroboration of tainted evidence has become a rule of law, but the application of such rule is dependent upon the circumstances of each case. As laid down by this Court in a number of cases, the inimical evidence can be believed without corroboration if the intrinsic worth of the testimony is such which inspires confidence and leads to a belief that the witness had seen the occurrence. Consequently the contention that the ocular testimony in this case should be brushed aside is without any substance. If at all prosecution desired to create some corroborative evidence, it was not difficult to plant an empty having been fired from the gun of the appellant. In our view, the prosecution in this case has come with clean hands and the conduct IE of the eye-witness is above board.
8. Adverting to the motive part of the prosecution case, there is nothing odd about it and it was not incumbent upon the prosecution to produce any witness to depose about the insult of Mst. Inayat Begum. The complainant, who lodged the F.I.R. Through his statement at the bridge of Rajbah 13-R in village Nagrianwala, could not have fabricated or innovated insult of Mst. Inayat Begum. In our view, the complainant had spoken the truth and that is why the learned Judges of the High Court treated it as a case of family honour so as to reduce the sentence of the appellant from death to imprisonment for life. The eye-witnesses are also related being the nephews of the deceased, and therefore, it is not expected that they would substitute the appellant with the real culprits.
Furthermore, mere relationship is also no ground to discard their testimony.
9. It was also contended on behalf of the appellant that the empty stomach of the deceased belies the prosecution case because if at all the deceased was proceeding to Gujrat from the village, he must have taken some food in his house, but the stomach was found empty. This contention too has no force. It is not unusual that a labourer would proceed to the town without taking any food.
On the other hand, the labourers sometimes take their breakfast after earning something in the town. The acquittal of the co-accused does not reflect upon the conviction of the appellant because in our view the Courts below have sifted the F grain from chaff and the eye-witnesses by corroborating each other attributed the fatal shot to the appellant.
10. For the foregoing reasons, we are of the view that the prosecution had proved its case beyond reasonable doubt against the appellant and, therefore, his conviction is justified on the record of the case. Hence this appeal fails and is hereby dismissed.