NAS1M HASAN SHAH, J.-The petitioner seeks leave to appeal against the judgment of the Lahore High Court, dated 8-6-1976, passed in Criminal Appeal No. 765/75 and Murder Reference No. 222 of 1975, w.1-Aereby his conviction under section 302, P. P. C. Was maintained and the sentence of depth confirmed
2. The case for the prosecution, briefly stated, is that at about 5 p.m. On 2-12-1972 while Muhammad Asghar injured P. W. Was standing in front of his house in Mohallah Amarpura, Rawalpindi City, and his brother Taj Mohammad was standing in the outer-door of the same house, Muhammad Hanif petitioner arrived (here and asked Muhammad Asghar whether he would stop one Nasir, who is stated to be an enemy of the petitioner, from visiting the house of the complainant in future. Asghar P. W. Assured him that he would not allow Nasir to come to his house in future, nor would he help him. Muhammad Hanif petitioner, who did not appear to be satisfied with this assurance, allegedly pulled out a knife from his pocket and inflicted a blow with it in the abdomen of Asghar P. W. In the meantime, Muhammad Rafique deceased, also a brother of Muhammad Asghar, stepped forward to rescue Asghar, but the petitioner also inflicted three knife blows on the various parts of his body, namely, chest, abdomen and flank. As a result, Refique deceased fell on the ground. In the meanwhile, Muhammad Bostan and Muhammad Suleman (given up at the trial) who were allegedly present near the place of occurrence and had witnessed the occurrence, raised an alarm, whereupon the petitioner ran away with the knife in his hand.
Muhammad Rafique deceased and Muhammad Asghar P. W. Were carried to the hospital, where the former succumbed to his injuries and died just after reaching the hospital. It is also the prosecution case that on the morning of the occurrence while Muhammad Asghar was present in Chowk Amarpura, he was slapped by Muhammad Banff petitioner. Iqbal is stated to be a friend of Muhammad Hanif petitioner. Both these persons asked Muhammad Asghar as to-why he allowed the above-mentioned Nasir to visit his house who he was an associate of .The accused party in some earlier case, in which the petitioner received knife injuries and one of his friends was killed.
Muhammad Asghar, who also owed some money to Muhammad if, was also asked to pay it forthwith but as he had no money at that time, he expressed his inability to repay the money: In the meantime, Muhammad Suleman and Muhammad Zaman intervened and Asghar was spared by the petitioner and his friend, but they went away saying that they would teach a lesson to Asghar for the above-mentioned reason.
3. On receiving information about the occurrence, Raidi Gul (A. S. 1. Since dead) reached the G. H.
Q- Hospital, Rawalpindi, and recorded the statement of Taj Mohammed complainant at 6-30 p.m., on the basis of which formal F. I. R. Exh. P C/1 was recorded at Police Station "C" Division, Rawalpindi, by another A. S. I. Agha Khan (P. W. 3) at 6-40 p.m. On the same day, Inayat Hussain, S. H. O.
Reached the soot and secured some blood--stained earth from there. On 16-12-1972 the petitioner surrendered himself in the Court of Sardar Mohammad Akram Magistrate First Close, Rawalpindi, and was formally arrested by the S. H. O. On 22-12-1972, while in custody, he led the police and the recovery witnesses to a brick---kiln wherefrom blood-stained knife Exh. P. I. Was recovered from a pit.
4. On 3-12-1972 Dr. Abdul Jabbar. Medical Officer, G. H. Q. Hospital, Rawalpindi, conducted autopesy on tire dead body of Muhammad Rafique deceased and found two stabbed wounds and one incised wound. In his Opinion injury No. 1 was sufficient to cause death in the ordinary course of nature.
5. At the trial, in support of its case, the prosecution examined two eyewitnesses, namely. Taj Mohammed (P: W. -7) and Mohammad Asghar injured (P. W. 8), both brothers of the deceased. The prosecution also relied on the motive and the recovery of the blood-stained knife, which was confirmed by the Serologist to be stained, with human blood.
6. The petitioner pleaded not guilty to the Charge and contended that he had been falsely implicated in this cast because his brother Mohammad Rafique was a P. W. In a murder case and the complainant party was pressing him not to give evidence in the said case. Since he refused to yield to the pressure exerted by the complainant party, they felt aggrieved and it was on that account that they falsely implicated him in this case.
7. The defence also examined one Suleman, who was originally a prosecution witness, but did not support the prosecution in the committing Court and was given up at the trial as having been won over by the petitioner.
8. The learned trial Judge believed the prosecution evidence against the petitioner and found him guilty of murder. He was, however, acquitted of the charge under section 307, P. P. C., on the ground that se far as this charge was concerned, there was no independent or circumstantial corrobora-- tion arid the prosecution had not examined the doctor who medically examined Muhammad Asghar P. W. The learned trial Judge discarded the evidence of the defence.
9. It was contended in the High Court that as both the eyewitnesses were real brothers of the deceased and inimical towards the petitioner, there--fore, it would be unsafe to place reliance on their testimony. It was further argued that the petitioner had no grievance against the deceased and the motive alleged by the prosecution was no motive. The learned Judges in the High Court observed that the fact that the above-mentioned7 witnesses are the real brothers of the decease was not sufficient by itself to discard their evidence as worthless and treat it was in evidence that Nasir, who was the supporter of the apposite-party of the petitioner, was on friendly terms with the complainant party and used to visit their house. There was nothing on the; record to suggest that tile complainant or Muhammad Asghar P.W had say direct enmity with the petitioner which could motivate them to falsely implicate the petitioner in a heinous crime, like murder. The High Court further observed that although Muhammad Asghar had admitted that he was challaned in a case under sections 420, 392 and 342, P. P'. C. And in another case under sections 406 and 420 P. P. C:, this fact was not sufficient to reject his testimony because, he road no animus against the petitioner and his presence at the spot was fully established by the fact that he was injured during the occurrence. At regards the injuries suffered by Asghar P. W. In the present occurrence, the learned Judges observed that there was abundant evidence on the record to show that he sustained injuries during the occurrence at the hands of the petitioner. His medico-legal report was on the file of the committing Court, though not formally proved. They further observed that the above-mentioned P. W. Bad absolutely no motive to falsely implicate the petitioner iii this case, and the account of occurrence given by them was consistent and inspired confidence. The occurrence took place in broad daylight at 5 p.m. When there was no possibility of any mistaken identification and was reported in the hospital at 6-30 p.m. Thus the High Court observed that in these circumstances there was absolutely no delay in lodging the F. I. R. And that in the case of a single accused substitution is extremely rare. Therefore, it was not possible to believe that the real culprit was let off and the petitioner was substituted in his place.
10. Before ns, it was submitted that the Courts below had not appraised the evidence --on the correct principles of appreciation of evidence. Elaborating this submission, it was urged that the Courts had taken as proved what was not proved, in that, that they had held that Mohammed Asghar P. W. Was an injured person even though his injuries were not proved by the evidence of any medical witness.
11. We find no force in this submission. It is tine that the medical witness, for one reason or the other did not appear at the trial, but Muhammad Asghar P. W. Dill appear as a witness and stated that he was injured in this incident and remained in the hospital for twenty-two days. Not a single question was put to him disputing big injuries. Even D. W. 1 Muhammad Suleman admitted that he saw Muhammad Asghar lying injured in his courtyard. There can thus be no doubt that Mohammad Asghar P. W. Was injured in this incident.
12. The further contention of the learned counsel for the petitioner was that there was no legal evidence on which the conviction of the petitioner could be based. Out of four eye-witnesses, mentioned in the F. I. R., two were given up and the remaining two eye-witnesses were the real brothers of the deceased So far as these two were concerned, one of them, namely, Taj Muhammad (P. W. 7) did not move his 'little finger" to rescue his own real brother from the hands of the assailant and suffered no injury. Hence there was no objective corroboration of his presence at the time of occurrence. As for Muhammad Asghar (P. W. 8), also a real brother of the deceased, who was allegedly injured while rescuing his brother, his injuries were not proved at the trial. There being no corroborative evidence with regard to his presence at the spot, his claim of being an eye- witness was, accordingly, also not proved.
13. This submission, too, is without merit. The incident had taken place outside the door of the house of the P. Ws. And their presence at the spot was natural. Taj Mohammed P. W. Had seen the fate of his brother Rafique, who had stepped forward to rescue Mohammad Asghar and. Received three knife blows in the abdomen at the hands of the petitioner. In these circumstances, it is quite understandable why Taj Mohammed (P. W. 7) die not come forward to assist his brother. So far as the submission that the presence of Muhammad Asghar P. W. At the spot was not proved because the injuries on his poison were not proved at the trial, it has already been observed that the statement of this witness that he was injured in this incident at the bar as of the petitioner was not disputed in the cross-examination and therefore, his presence at the spot stands established beyond any doubt Similarly, Taj Mohammed (P. W. 7), being an inmate of the house in front of which the incident took place, wag a natural witness of the occurrence. Consequently, there is no reason for not accepting the said two witnesses as true eye-witnesses of the occurrence. Their evidence, therefore, is entitled t. Full weight.
14. Lastly, it was attempted to be argued that some unidentified assailant caused the death of Muhammad Rafique and the petitioner was mentioned as the assailant on account of suspicion.
15. We do not find much force in this contention either. The incident took place at 5 p.m. And at that hour identification of the true assailant was not difficult, especially by Muhammad Asghar, who actually received an injury at the hands of the assailant. Furthermore, in case, someone was to be involved in the matter on account of suspicion then Muhammad Iqbal, who had clapped Muhammad Asghar on that very morning would have been named as the accused. But, as rightly pointed out by mho High Court, substi--tution is a phenomenon of rare occurrence and we are satisfied: that the true culprit has not been substituted on account of suspicion or on any other ground, in this case.
16. No ground has been made out for interference. This petition is accordingly dismissed.