' QAZI MUHAMMAD FAROOQ, J.---On 30-4-1999 at about 4-30 p.m. One Noor Khan was strangulated to death within the limits of Dhok Sher Khan, District Chakwal. In the ensuing F.I.R. That was lodged by his brother Muhammad Khan at Police Station, Lawa three Afghan refugees Sardar Khan, Sharbat Khan alias Pahar Khan and Sarwar Khan were nominated as the accused. The accusation was to the effect that the complainant and the deceased being tenants of one Sarfraz Khan used to look after his Rakh called 'Kass Niki'. On the fateful day while the complainant alongwith the deceased, Muhammad Aslam and Muhammad Anwar were collecting chaff at the thrashing-floor the accused started grazing their goats and camels in the said Rakh. The deceased went to the Rakh to turn out the cattle. When he reached the Rakh and drove out the cattle an exchange of abuses took place between him and the accused which developed into grappling. On hearing the hue and cry the complainant and his companions rushed towards the Rakh and found that the deceased was lying on the ground and while his hands and legs were being held by Sardar Khan and Sarwar Khan in their grips Sharbat Khan alias Pahar Khan was sitting on his chest and throttling his throat. Seeing them the accused ran away and it transpired that the deceased had expired. The occurrence was motivated by an exchange of abuses and grappling between the deceased and the accused three days prior to the occurrence.
2. The accused were tried by the learned Additional Sessions Judge, Chakwal who, vide judgment dated 18-12-1999, convicted them under section 302/34, P.P.C. And awarded sentence of imprisonment for life, with benefit of section 382-B, Cr.P.C., and a fine of Rs,50,000 or three years R.I.
In default each subject to the observation that half of the fine, on recovery, shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Normal sentence for the offence of murder was not awarded for the reason that the occurrence had taken place on spur of the moment without premeditation or motive. The appeal preferred by the convicts was disposed of on 8-5-2000 by a learned Single Judge of the Lahore High Court, Rawalpindi Bench Rawalpindi in this manner that it was dismissed to the extent of Sharbat Khan alias Pahar Khan and accepted in respect of Sardar Khan and Sarwar Khan who were acquitted on the ground that the prosecution case against them had not been proved beyond any reasonable doubt. Feeling aggrieved Sharbat Khan- alias Pahar Khan has filed Criminal Petition No,125 of 2000 and the complainant has filed Criminal Petition No,135 of 2000 against acquittal of Sardar Khan and Sarwar Khan and for enhancement of the sentence of imprisonment for life awarded to the petitioner Sharbat Khan. This judgment will dispose of both the matters.
3. Conviction of the petitioner is based on the abortive plea of self-defence contained in his statement under section 342, Cr.P.C. And the ocular evidence furnished by the complainant Muhammad Khan (P.W.2) and Muhammad Anwar (P.W.3). The plea of self-defence is worded thus:- ' "The fact of the matter is that my animals were grazing outside the Rakh Kass Niki when the deceased came running and in an agitated mood and started abusing me under the wrong notion that my cattle had trespassed and after hurling filthy abuses he grappled with me and held my neck, started pressing it and wanted to throttle me when acting in the right of my self-defence I also pressed the neck of the deceased and in the scuffle the deceased met his death.
' Muhammad Khan complainant and Muhammad Anwar P.W. And Muhammad Aslam were not present on the spot and they did not witness the occurrence.
' The other two co-accused Sardar Khan and Sarwar Khan were also not present at the time of occurrence and they did not participate in it. I had taken up the same stand in my bail application and the two co-accused also had taken the same stand in their bail petition."
4. Assailing the prosecution case the learned counsel for the petitioner Sharbat Khan contended that it was an unseen occurrence and the eyewitnesses were not present on the spot because had they been present they would have definitely stepped forward to rescue the deceased from the clutches of the accused and the chaff and the agricultural instruments with which they were professedly collecting the same would have been seen on the spot and taken into possession by the Investigating Officer. In any case they were closely related to the deceased and not truthful witnesses having been disbelieved by the learned trial Court qua the co-accused and the motive.
It was further contended that the ocular evidence being trumped-up was liable to be kept out of consideration and the plea of self-defence of the petitioner being the sole incriminating factor was to be taken as a whole particularly when it was supported by the injury on the knee of the deceased which suggested that he too had sat on the chest of the petitioner and made an attempt to strangulate him.
5. The ocular evidence cannot be excluded from consideration as the promptitude with which the F.I.R. Was lodged points to the presence of the eye-witnesses on the spot at the time of occurrence.
Besides, their statements to the extent of the petitioner Sharbat Khan do not suffer from any serious or alarming contradiction or discrepancy despite the fact that they were subjected to lengthy cross-examination. No doubt both the eye-witnesses are related to the deceased but this circumstance is not enough to discredit their testimony especially when it is amply corroborated by the promptly lodged F.I.R. And the medical evidence. Mere fact that the Investigating Officer had not taken into possession the chaff or any tool of husbandry is not sufficient to make their presence on the spot doubtful. It is a matter of common knowledge that some Investigating Officers do not conduct the investigation meticulously and recover only those articles from the spot which tend to connect the accused with the crime. As regards the contention that integrity of a witness is indivisible it would suffice to say that the maxim "falsus in uno falsus in ominbus" having failed to stand the test of time has since been discarded and replaced by a more rational and pragmatic methodology of evaluation of the ocular evidence whereby the grain is sifted from the chaff.'
6. Adverting to the plea of self-defence we find that in the absence of supporting evidence it cannot demolish the prosecution case which is supported by ocular evidence. The injury on the left knee of the deceased being a scratch measuring 2 c.m. x 2 c.m. Appears to have been caused by a fall on the ground and cannot be stretched to mean that the deceased had sat on the chest of the petitioner in order to strangulate him. We are convinced that the case set up by the petitioner was not reasonably possible. The petitioner cannot make any mileage from the plea of self-defence which in fact goes a long way to augment the prosecution case that the tragedy was enacted by him. We are thus not inclined to grant leave to appeal.
7. The petition filed by the complainant is also without substance as the prosecution case against the acquitted accused has indeed not been proved beyond any reasonable doubt and lesser sentence awarded to the petitioner Sharbat Khan is based on a valid mitigating circumstance.
' Consequently, leave prayed for is refused and both the petitions are dismissed.