ABDUL NASIR Versus STATE

Abdul Nasir son of Malik Abdul Qadir, (aged 16 years and 3 month.; at the time of trial) was held guilty for the murder of Muhammad Sabir, a student of 9th class in Cantonment Public High School, Attock. He was convicted under section 302, P. P. C. and sentenced to life imprison ment and fine of Rs. 5,000 ; or in default to undergo six months' R.

1. Out of the fine, if recovered, Rs. 3,000 were ordered to be paid to the father of the deceased as compensation. The convict has filed this appeal against the judgment of the trial Court dated 31st March 1979.

Abdul Majid complainant has filed Criminal Revision No. 510 o: 1979, praying "that the sentence of Abdul Nasir accused be kindly enhance to death and the sentence of fine be also enhanced". It was ordered to b: heard along with the appeal.

2. On 11th November, 1976, at about 2-00 P.m., Muhammad Sabir and Muhammad Javed after finishing their school, were on their way back home via Company Bagh. When Muhammad Sabir reached near she gate of Deputy Commissioner's house, which faced East in the garden, found the appellant standing there. The appellant challenged Muhammad Sabir that he would not be spared. The appellant all of a sudden took out a chhuri from his Dhab and caused an injury on the left 1to of Muhammad Sabir, which pierced through his left flank. Ali Khan, tong- driver, was coming from the southern side. He saw what had happened. In the meanwhile the appellant ran away.

Muhammad Sabir fell down and started bleeding. Javed was asked to rush to the father of the injured and inform him. Ali Khan stood with the injured boy. Javed contacted the father of Muhammad Sabir and told him what he had seen. The boy returned with Abdul Majid, father of the deceased. At that time, Muhammad Sabir was alive and was in his senses. Abdul Majid asked as to what had happened to him. Muhammad Sabir told hire that while he was on his way home from school, he was tracked by the appellant with a chhuri. Abdul Majid took his son to the 11Ospital, whereas Javed left for his home.

Muhammad Sabir expired in the hospital on 11th November, 1976 at Namashanwela. Abdul Majid gave statement Exh. P. F. to the Police in the, hospital, which was taken down by Muhammad Ashraf A. S. I.

3. Prosecution relied on the ocular version of Javed and Ali Khan well as the testimony of Abdul Majid. Reliance was also placed on the covert' of chhuri and the medical evidence.

4. The appellant denied the allegation of murder and said that he td been implicated on account of suspicion.

When questioned : "do you wish to say anything else", he gave the (lowing answer :-

"My father married three wives. One of whom my step-mother is dead. My real mother and the step-mother reside together since long and I am residing with them. Two persons named Mustafa and Mujtara, they brothers, they are cousins of Shah Rasul Hamidi Advocate. Both of them are hamzulf of each other and have married the two sisters of Shah Rasul Hamidi. The phuphi of Javed P. W. is the wife of Shah Rasul Hamidi. One Abdur Razaq is the cousin of Shah Rasul Hamidi and Mustafa and Mujtaba and he is the humzulf of Abdul Majid P. W. I am innocent."

To a question "will you produce any defence evidence the appellant replied as under:--

"Yes. I wish to tender in evidence only documents and no witnesses. These documents are certified copy of my birth entry (Exh. D. K.) two attested copies of the orders of the High Court, Lahore, during my bail matter which are Exh. D. L. and Exh. D. M., Exh. D. N and Exh. D. N./1, Exh. D. O., which relates to Ali Khan P. W. this is a certified copy with two sheets, Exh. D. P. certified copy regarding Ali Khan P. W. in a case under section 380, P. P. C, Exh. D. O. regarding Ali Khan P. W., when he appeared as witness in an Arms case and Exh. D. R. attested copy of list of witnesses appended with a complaint filed by Shah Rusul Hamidi, Advocate, before A. C. Attock under section 500, P. P. C. and I close the defence evidence."

Before discussing the contentions raised by the learned counsel for the appellant, I would like to observe that the trial Court did not believe Ali Khan. I have examined his evidence as well as the reasons given by the trial Court for doing so.

It is in evidence that the witness was on friendly terms with the local Police and was always at their beck and call. His evidence was therefore rightly rejected.

The evidence pertaining to recovery was not convincing and was rightly discarded by the trial Court.

6. The only other witnesses are Javed and the father of the deceased. As already observed, the father of the deceased is not an eye-witness. So the fate of this appeal depends on the solitary statement of Muhammad Javed.

Regarding his testimony Mr. Zaman submitted that it will not be safe to rely on the evidence of a child witness, because when he was examined, he was a student of 6th class, aged 12 and at the time of incident he was only 91 years.

Learned counsel submitted that `judicial propriety' demanded that the evidence of Muhammad Javed must find corroboration from other independent evidence which was of unimpeachable nature.

Learned counsel did not define as to what he meant by "judicial propriety". . I am of the view that the expression `judicial propriety' is to be examined in context with the evidence of each case. Judicial propriety to my mind is always subject to law and judicial discretion. Here I would like to quote para. 1347 'from Arch bold Criminal Pleading, Evidence. and Practice, thirty-five Edition by Butler and Garsis by dealing with credibility of witnesses : -

"The credibility of a witness depends upon (1) his knowledge of the facts to which he testifies; (2) his disinterestedness ; (3) his integrity ; (4) his veracity ; and (5) his being bound to speak the truth by such an oath as he deems obligatory, or by such A affirmation or declaration as may by law be substituted for an oat (pst para. 1357). Proportioned to these is the degree of credit hi testimony deserves from the Court and Jury."

7. I have gone through the evidence of Muhammad Javed with the help of the learned counsel -and I am of the view that the boy gave evidence with full confidence. He stood the test of cross-examination as best as is expected from a truthful witness. His evidence is full and sincerity and warmth. I am really impressed by his stance in the witness box. The witness fulfilled all the essential ingredients referred to above regarding his credibility. I; therefore, have no reason to disbelieve him.

8. This leaves me to examine the next submission of the learned. counsel as to whether it is necessary to find some corroborative evidence. In law, there is no restriction of number of witnesses. This is the rule under the Common Law as well as 'under the Evidence Act, 1872. Section 134 of the Act, reproduced below, is clear and needs no clarification :-

"134. Number of witnesses.-No particular number of witnesses shall in any case be required for the proof of any fact."

I am, therefore, of the view that what is more important in law for administration of criminal justice is the quality of evidence and not the quantity.

For the foregoing reasons I hold that the prosecution has proved its case against the appellant beyond reasonable doubt.

9. The next question to be considered is whether the conviction of the appellant under section 302, P. P.. C. is legal. I do not think so. The reason being that there is nothing in the evidence of Muhammad Javed pertaining to motive. The other factor is that it so appears from the nature of injuries that the intention of the appellant simply was to injure the deceased and it was sheer bad luck that he was hit in the left flank on account of which he died. This fact is supported by the medical evidence, because the doctor who performed the autopsy noticed an incised wound 1 " x 1/3 chest cavity, 5" deep and an incised wound 1 ' x `, muscle deep, over postero-medial aspect of left upper arm. The doctor admitted in cross-examination that "the injury Nos. 1 and 2 were in line and could be caused with a single blow of a sharp-edged and pointed weapon."

For the foregoing reasons I alter the conviction of the appellants from section 302, P. P. C. to section 304 (I), P. P. C. and sentence him to liver years' R. I.

The fine imposed by the trial Court was not adequate. I, therefore, gave notice to the learned counsel for the appellant to show cause why the fine be not enhanced. He accepted the notice. I accordingly enhance the fine to Rs.20,000 (rupees twenty thousand only) which shall be paid as compensation to the legal heirs of the deceased. Collector concerned is directed to .take necessary steps for realization of the aforesaid amount.

The appeal is disposed of accordingly.

As I have enhanced the amount of compensation, the revision is dismissed in limine.

Order accordingly