' KHAWAJA MUHAMMAD SAEED, C.J.---This appeal is directed against the judgment passed on 22- 11-2003 by the Shariat Court of Azad Jammu and Kashmir, Circuit Mirpur, in Criminal Appeal No.11 of 1999.
2. The facts giving rise to this appeal, briefly stated, are that Masood Hussain, appellant, made a report at Police Station. Mirpur, alleging therein that on 6-7-1991 at 4-30 a.m., his father, Abdul Haq, was sitting at a cot in the courtyard of his house while holding two years Fareen the daughter of his daughter, Mst. Tasleem, in his lap. The accused-respondent, Ghazanfar Ali, equipped with Kalashnikov, trespassed from the western gate of the house and fired at his father. Abdul Haq, with intention to kill him. The fire hit Fareen, the daughter of Amanat Ali, on the right side of her head and face and also hit his father Abdul Haq, over tibea fossa. Fareen alsc' received a shot on her chest and died instantaneously on spot. The other two accused respondents, Aftab Hussain and Mshboob Hussain were also armed with fire-arms. All the three ,accused persons thereafter escaped from the scene of occurrence. The occurrence was witnessed besides him, by his father, Abdul Haq, his brother Tariq, his uncle Muhammad Yusuf. In the F.I.R. He also alleged that prior to the present occurrence, the accused-respondents had killed one of his relatives. Muhammad Yusuf, whose case was awaiting disposal in the Court of law. The occurrence, according to the complainant, was the result of previous enmity between the accused party and the complainant party.
3. In the light of this report, a case under sections 5/15, Islamic Penal Laws Enforcement Act, and sections 307/34. Azad Penal Code, was registered against the accused-respondents. They were ultimately sent to face trial before the District Court of Criminal jurisdiction, Mirpur, on 3-3-1998. In their statements recorded under section 242, Cr.P.C. On 14-12-1991, they denied their guilt. As such the prosecution was ordered to lead its evidence. At the end of trial, the accused-respondents were acquitted by the trial Court by extending benefit of doubt vide judgment, dated 31-10-1998 .Which was assailed in appeal before the Shariat Court Azad Jammu and Kashmir, Circuit Mirpur.
On appeal the Shariat Court vide its order, dated 22-1-2003 maintained the order of acquittal, hence this appeal.
4. Ch. ' Muhammad Sharif Tariq, the learned counsel for the appellants, in support of the appeal, argued that prior to the present occurrence, the accused-respondents, in the same house, had murdered one Muhammad Yusuf on 11-2-1991. On 6-7-1991, all the accused-respondents armed with fire-arms, second time attempted to take away the life of Abdul Haq, the head of the family and the father of the complainant, and in the occurrence they took the life of one Fareen aged two years. According to him, the occurrence was witnessed by injured Abdul Haq and other inmates of the house. The evidence of eye-witnesses is fully supported by the recovery of weapons of offence at the pointation of the accused-respondents, the recoveries of blood-stained clothes of deceased and Abdul Haq, the injured person, blood-stained earth, empties of Kalashnikov, bullet brought out from the body of the injured, Abdul Haq, postmortem report and injury report of Abdul Haq. But this evidence was not properly appreciated either by the trial Court or by the first Appellate Court. His grievance is that authorities cited by 'him in support of the prosecution case were neither mentioned in the impugned order nor discussed while concurring with the order of acquittal of accused-respondents recorded by the trial Court. He also criticized that the witnesses produced by the prosecution were not given much importance mainly on the ground that they were closely related to the deceased. Fareen aged two years, and injured Abdul Haq, whereas this aspect has not been given proper weight that the place of occurrence was the house of the complainant where the occurrence took place. Therefore, inmates of the house in the circumstances were the natural witnesses particularly when the offence was committed at 4-30 a.m. According to him, the testimony of Abdul Haq, the injured witness, in the circumstances, is most important. This witness was discarded in an arbitrary manner. He further argued that the accused had nreviously killed Muhammad Yusuf, a close relative of the complainant party and this time they once against attempted at the life of Abdul Haq and killed the daughter of his daughter whom he was holding in his lap while sitting on a cot in his courtyard. Therefore, in these circumstances, the accused- respondents, were entitled to severe punishment. The accused-respondents were seen even by other witnesses while running from the place of occurrence. A reference was given to the statement of Muhammad Nisar in this regard.
5. According to the learned counsel, Mst. Tasleem and Mst. Sarwar Jan were not cited as eye- witnesses in the F.I.R. However, they were inmates of the house, as such, had seen the whole occurrence, therefore, were produced in the Court as eye-witnesses. The mere fact that they were not shown as eye-witnesses in the F.I.R. By itself was not sufficient to label them as set of witnesses.
Reliance was placed by him upon a case reported as Waheed alias Siraj v. The State 1990 MLD 1536.
6. While placing reliance on another authority of this Court reported as Abrar Hussain Shah v. The State (1992 SCR 294), the learned counsel submitted that the evidence of the prosecution witnesses cannot be discarded merely because they are related to the deceased or the complainant. In the same way if a person was not mentioned as eye-witness in the F.I.R. It shall not make any difference as the F.I.R. Is not a detailed document. Therefore, any omission committed in not mentioning the name of any witness as an eye-witness in the F.I.R. Shall not destroy the whole case of the prosecution an such omission shall not be sufficient to keep the statements of such a witness out of consideration. All the prosecution witnesses were natural witnesses who had seen the occurrence. Therefore, the statements of interested but natural witnesses can be believed with implicit faith without difficulty. No corroboration in such matters should be insisted upon as a rule of law. The learned counsel relied upon cases of this Court reported as Muhammad Hanif v. The State 1983 PCr.LJ 225 and Niaz Muhammad alias Jaja and another v. The State (PLD 1983 SC (AJ&K)
211) wherein it was laid down that the evidence of a witness cannot be rejected merely that such a witness was related to the deceased and inimical towards accused. Reliance was also placed on a case reported as Inayatuallh and others v. The State PLD 1982 Lah. 26, wherein the statements of such eyewitnesses were relied whose presence at the place of occurrence was not doubtful on account of injuries sustained by them due to their presence at the place of occurrence. The learned counsel for the appellant also relied on a case titled Alam Sher and 5 others v. The State (1975 PCr.LJ 1188), wherein it has been laid down that if witnesses are related to complainant party and are on hostile terms with deceased party, they can be believed as statements of such witnesses are corroborated by trustworthy and reliable statements of other independent witnesses.
7. The learned counsel supported the recovery effected in this case by the prosecution. According to him, the recovery was effected by the Police on the pointation of the accused-respondents from a discarded place near Mirpur-Bhimber Road, in presence of the recovery witnesses. The Courts below, according to learned counsel, have not relied on their statements because they were related to the deceased. Mere relationship was not sufficient to discard the testimony of the recovery witnesses. Even the recovery proved through the Investigating Officer could be taken into consideration while awarding capital punishment to the accused persons involved in the case.
Reliance was placed on a case reported as Nadeem Shah v. The State 1994 PCr.LJ 300. In this case it was laid down that the mere fact that recovery witness was related to the deceased and the fact that he did not belong to Basti from where recovery was effected would not be sufficient to discard his testimony particularly so when the same finds support from the statement of Investigating Officer who definitely had no animosity against the accused. On the basis of the same authority, the learned counsel further submitted that conviction can be based on ocular evidence which inspires confidence and is corroborated by medical evidence and recovery evidence. Reliance was also placed on a case titled Lashkar Ali and others v. Deputy Commissioner, Sheikhupura and another (1989 SCMR 1460) where the conviction was based on the evidence of such person who had received injuries during the occurrence. By holding that his presence on spot could not be doubted and his version of occurrence was supported by other eye-witnesses who were related to the deceased and there was nothing on the record to show that they had any enmity with the accused party so as to falsely implicate them in the case.
8. Conversely, Mr. Abdul Majeed Mallick, the learned counsel for the accused-respondents, in support of the orders of acquittal recorded by the Courts below, maintained that the occurrence is not proved as was alleged by the prosecution. The statements of prosecution witnesses were rightly disbelieved by the Courts below as they are closely related to each other and highly inimical to the accused-respondents. Even though the motive is alleged by the prosecution but the same was not proved for which the accused-respondents could be blamed for occurrence. In this case, no doubt Abdul Haq was injured in the occurrence, but he had three versions about the occurrence and all the three are inconsistent to each other. It was further submitted by him that whole prosecution case becomes doubtful as bullet recovered from the abdomen of the injured Abdul Haq was not Kalashnikov which is attributed to Ghazanfar Ali, accused-respondent. Therefore, the empties recovered from the scene of occurrence are of no importance because the bullet was not fired from Kalashnikov. He further submitted that the weapons of offence were taken into possession by the police from a discarded place near Bhimber-Mirpur Road and the same was not witnessed by any independent person of the vicinity. According to him, as there is no proof that the Kalashnikov and .7-mm rifles allegedly recovered by the Police belong to accused-respondents, therefore, they cannot be held owners of these fire-arms. The learned counsel further argued. That on account of material discrepancies appearing in the statements of eye-witnesses. Abdul Haq, and his son Tariq, and others the whole prosecution case appears to have been built up on the basis of enmity against the accused-respondents. His clients surrendered at Police Station voluntarily after the occurrence, when it came in their knowledge. The learned counsel disputed that occurrence took place at 4-30 a.m. In the light of statement of Muhammad Azam P.W. Who has stated that he was attracted to the scene of occurrence at 6 to 7 a.m. When he heard hue and cry from the house of Abdul Haq. He attributed padding to the prosecution on the ground that Mst.
Tasleem and Mst. Sarwar Jan were not entered as eye-witnesses in the F.I.R. Which was lodged by the son of injured Abdul Haq but these two ladies were subsequently produced in the Court to support the prosecution version whereas Muhammad Yusuf who was entered as eyewitness was not produced in the Court, therefore, according to learned counsel, the inference can be drawn that he was not willing to support the prosecution version. He craved that on account of aforementioned reasons, the orders of acquittal recorded by both the Courts below may be maintained by dismissing the appeal of the complainant.
9. We have considered the arguments of the learned counsel for the parties in light of the relevant record. The occurrence is alleged to have taken place at 4-30 a.m. On 6th of July, 1991. The case of the prosecution as narrated in the F.I.R. Is that Abdul Haq was sitting on a cot in the courtyard of his house by holding two years old Fareen in his lap when the accused, Ghazanfar Ali, trespassed into his house from the western gate and opened fire with Kalashnikov in order to kill Abdul Haq which caused injury to Fareen, the daughter of Amanat Ali on the right side of her head and face and also caused injury to Abdul Haq over right tibea fossa. Ghazanfar Ali is also alleged to have injured the chest of Fareen by another fire as a result of which she died on spot. We have noticed that there are three statements attributed to Abdul Haq which are on the file of the trial Court. The first statement was recorded on 7-7-1991 which is at page 62 in which he had stated that on 6-7-1991, after offering prayers in mosque, he returned to his house. He told his daughter. Mst. Tasleem, who was sleeping there to prepare a cup of tea for him and he took the daughter of Mst. Tasleem in his lap and got seated on a cot which was lying in front of the gate.
' Ghazanafar Ali fired at him from gate. He fell down. Then he fired twice in the street. On account of hue and cry, the said accused ran away from the scene of occurrence. The daughter of Mst.
Tasleem died at the place of occurrence. The accused was accompanied by Aftab Hussain and Mahboob Hussain, the other accused persons. His wife, Mst. Sarwar Begum, was offering morning prayer in the house. His sons Tariq and Masood Hussain Were present. He also disclosed enmity with the accused-respondents. According to this statement of Abdul Haq, Ghazanfar Ali accused, opened fire at him from the gate of the house and also fired twice when he was in the street.
According to the material brought on the record five empties attributed to Ghazanfar Ali fired from Kalashnikov were taken into possession inside the courtyard of the house of Abdul. Haq. These five empties, in the statement of this prosecution witness, could not be present in the courtyard as Ghazanfar Ali had not entered into the house. Moreover, he had fired only once and that too from the gate of the house. This statement is attributed to him as his dying declaration. In his Court statement which was recorded on 11-1-1993, this witness in his examination-in-chief attributed three fires to Ghazanfar Ali. His evidence reads as follow:-- {{URDU TEXT}}
10. He has also attributed `Lalkara' to other accused-respondents which is not attributed by the appellant who is complainant and eye-witness of the occurrence to these accused persons in his F.I.R. According to this witness, he and Muhammad Azam offered prayer on the day of occurrence together in the mosque and returned to their houses together from the mosque. Muhammad Azam accompanied him up to his house and, thereafter, he proceeded further towards his own house.
After firing, according to this witness, Muhammad Azam also came at the scene of occurrence. A suggestion was put to him by the prosecution that on the date of occurrence, his son, Masood Hussain, was repairing his gun when suddenly a bullet was fired from it which caused death of Fareen and also injured him. However, this suggestion was not owned by this witness. In cross- examination, this witness has narrated a new story according to which all the three accused persons entered into his house. Aftab Hussain and Mahboob Hussain, the other accused- respondents, were two feet behind Ghazanfar Ali. First of all Aftab Hussain and Mahbodb Hussain raised a `Lalkara' that Abdul Haq should be killed. They were also armed with guns. The material parts of the statements were put up to him which he had made before the Police when his statement recorded under section 161, Cr.P.0 was recorded. He replied in affirmative that the statement given by him in Court was also given by him before Police at the time when Police recorded his statement under section 161, Cr.P.C. But the above-referred part of statement was not present in his statement under section 161. He admitted that soon after the firing almost all the inhabitants of the village gathered in his house. He has also admitted that his brother, Muhammad Yusuf, was also present in the courtyard when the incident took place. His son Tariq was in the veranda of his room. From his statement it appears that out of the inmates the whole occurrence was witnessed by Muhammad Yusuf, who was standing in the courtyard, but this witness was not produced by the prosecution. Judging the case of the prosecution from the statement of this witness initially recorded on 6-7-1991 and then in the Court on 11-1-1993, the case as was set up against the accused-respondents becomes doubtful. As stated earlier, this witness had attributed one fire in his statement recorded on 7-7-1991 that too from the gate of the house whereas according to his second statement which was recorded by the Court on 11-1-1993, he had attributed three fires to Ghazanfar Ali. In these circumstances, the question which makes the case of prosecution doubtful is that how five empties of kalashnikov could be recovered from the place of occurrence when either one or three shots were fired by accused-respondent, Ghazanfar Ali.
11. Mst. Tasleem, according to Abdul Haq, was sent by him to prepare tea for him. Mst. Sarwar Begum, his wife was busy in offering prayer. Both of them were not mentioned in the F.I.R. But subsequently they were produced in the Court as eye-witnesses. The learned Judge in the Shariat Court, besides other reasons, has not relied on the statements of these two witnesses on the ground that their statements under section 161, Cr.P.C. Were recorded on 11-7-1991 without any plausible explanation as to why their statements were not recorded earlier. From the statement of Abdul Haq it becomes clear that the houses of Abdul Haq and Muhammad Azam are located in the same street, Both of them after offering prayer in the mosque returned together. Muhammad Azam, P.W. Accompanied Abdul Haq up to his house, then proceeded further towards his own house. Muhammad Azam has stated that he was attracted to the place of occurrence on the hue and cry at 6/7 a.m. And not on account of report of fire by kalashnikov. It is admitted by the injured person, Abdul Haq, that all the villagers came at the place of occurrence but none out of them has been cited as a witness. Muhammad Azam has not supported the prosecution case. In this statement he has denied that he heard the report of the fire at 4-30 a.m. And has also stated that he went to the house of Abdul Haq along with Muhammad Najeeb, Muhammad Sadiq and Abdur Rashid. He has negated the assertions in the follows words:-- {{URDU TEXT}} ' The house of Muhamtr.4-4,1 Azam is located at a distance of 30 yards from the house of Abdul Hag. He has clearly stated that no other house is located between his house and the house of Abdul Haq. In these circumstances, it cannot be said that the report of shot fired with the Kalashnikov was of low intensity, as such, this witnesses could not hear the same. From the evidence of this witness the possibility of the defence version cannot be ruled out that no person from the vicinity was cited by the prosecution as a witness as a false case was concocted against the accused-respondents on account of established enmity which, according to the prosecution witness, Mst. Tasleem, was an outcome of an abduction case of her paternal aunt, Mst. Fehmida by the brother of respondents, namely, Ibadat, on account of which reason, the parties were inimical to each other. The defence version that Tariq, the son of injured Abdul Haq and brother of present appellant, the complainant, was repairing his gun when abruptly a shot fired from his gun took the life of two years old daughter of his sister. Mst. Tasleem, and also injured his father cannot be ruled out because the Fire-arm Expert has stated that in his opinion two .7mm, marked as RI and R2 rifles allegedly recovered from Aftab Hussain and Mahboob Hussain, accused-respondents, were not in working order in their normal condition. According to the Examiner of Fire-Arms, "some mechanical defect has been made in their firing mechanism intentionally. The crime jacketed bullet marked as 'IV was returned unexamined by him because no test bullet could be prepared from the rifles marked as RE and R2 for comparison with the crime bullet marked as B". This report has totally negated the prosecution story that the accused-respondents, Ghazanfar Ali, armed with Kalahnikov by firing with it had taken the life of Fareen, two years daughter of Mst. Tasleem mid had injured Abdul Haq.
' From this report it becomes clear that the bullet recovered from the body of injured Abdul Haq was fired from .7mm rifle and not from the Kalashnikov as claimed by the prosecution whereas according to all the eye-witnesses, the accused-respondents, Aftab Hussain and Mahboob Hussain, are attributed to have raised only `Lalkara'. It is not the prosecution case that anyone of them even had used .7mm rifle in the occurrence. In the light of these facts, the alleged recovery made from the deserted place near Dhairy Chaudhrian, in presence of Masood Hussain, complainant-appellant, and his brother Tariq at the pointation of the accused-respondents is not free of doubt. As a marginal witness, Muhammad Yusuf, who was an eye-witness of the occurrence was most important person as he was standing in the courtyard when the occurrence took place but he was not produced to support the version of Abdul Haq and to prove the alleged recovery of weapons of offence at the pointation of the accused-respondent.
12. We have no quarrel with the learned counsel for the complainant that the testimony of prosecution witnesses cannot be discarded merely on- the ground of relationship with the complainant or the deceased. We also have no quarrel with the proposition argued by him that in a criminal case even the conviction can be based on the statement of a solitary witness. Let us make it clear that the conviction can be based on the statement of such a person whose presence at the spot is not disputed and who was in a position to identify the offenders and against whom it cannot be said that there was any possibility of substitution by him. In such a case, the statement of the such person could be accepted without corroboration. But in the present case there are exaggerations in the statements of eye-witnesses and their veracity on account of material contradictions in their statements keeping in view their enmity with the accused party is doubtful.
Therefore, an independent corroboration was necessary. In the present case, the injured Abdul Haq has not even owned the prosecution case as set up against the accused-respondents. We have discussed the matter in the preceding part of this judgment. In this case, the presence of independent witnesses from locality soon after the occurrence is admitted by the prosecution but none of them has been produced in the Court except Muhammad Azam who has not disclosed that soon after the occurrence, he was told by the complainant party that the accused- respondents are responsible for the occurrence and that they had fled away after committing offence of murder of deceased child, Fareen, and after causing injury on the person of Abdul Haq.
Tariq, the son of the complainant in his statement has admitted presence of so many persons even at the place from where the weapons of offence were recovered by the Investigating Officer on the pointation of the accused respondents. But no independent person was either cited or produced to prove recovery. This fact creates doubt about the recovery made in the present case. Even otherwise, there is no proof that the alleged weapons of offence were owned by the accused- respondents or were seen by any person in their possession prior to the occurrence. In the light of these facts, the alleged recovery made at the pointation of the accused-respondents is not free of doubt which was therefore rightly not relied upon by the Courts below against the accused- respondents.
13. Ch. Muhammad Sharif Tariq, the learned counsel for the appellants, has given much importance to the statement of Muhammad Nisar. P.W. Let us make it clear that Muhammad Nisar was not cited an eye-witness in the F.I.R. His statement under section 161, Cr.P.C. According to his own version, was recorded after 8 to 10 days of the occurrence at the Police Station where he himself went to support the prosecution case. He remained silent for a period of 8 to 10 days which has not been explained by him. This witness also has produced an affidavit which is Exh."DI" which reads as follows:-- {{URDU TEXT}} ' In these circumstances, the statement of this witness in support of prosecution version was rightly ignored by the Courts below. His statement even otherwise is directly, in conflict with the statement of Muhammad Azam, the neighbour of the complainant. His presence in mosque for morning prayer was not admitted by Abdul Haq, therefore, in a case where direct evidence fails, corroborative evidence is of no value because corroborative evidence is meant to test the veracity of ocular evidence. Therefore, both the ocular and corroborative evidence is to be read together and not in isolation of each other. In this case evidence given by the eye-witnesses cannot be believed. The recovery of weapons of offence is not free of doubt. The recovery of empties from the courtyard of injured. Abdul Haq, is directly in conflict with the prosecution story as narrated by Abdul Haq. On account of these reasons, the blood-stained clothes of deceased and Abdul Haq, the injured person, blood-stained earth, empties or Kalashnikov recovered from the place of occurrence have no evidentiary value against the accused-respondents. The medical evidence in this case cannot be taken as corroborative evidence as the injuries on the person of dead body cannot speak against the person who caused the same. The statements of complainant and his brother, Tariq are directly in conflict with the statements of Abdul Haq, injured person, and other prosecution witnesses.
14. In support of prosecution version, a site plan Exh.PM was prepared by the Patwari. The site plan, according to Patwari was prepared on the pointation and information furnished by Abdul Haq. P.W.
But Abdul Haq has denied that he ever furnished any information to the Patwari. Even otherwise, the statement made by the Patwari is directly in conflict with other record as Abdul Haq remained in hospital up to 14-7-1991 whereas Exh.PM is dated 11-7-1991.
15, Dr. Muhammad Arshad conducted the post-mom-in of dead body of deceased daughter of Mst. Tasleem, namely Fareen and also examined Abdul Haq and prepared his medical report. The post-mortem report was got exhibited in his statement as "P.O." and the medical report of injured Abdul Haq as Exh.PR. According to this witness the bullet, Exh. "PI" was recovered by surgeon from the body of Abdul Haq in the hospital who was not produced by the prosecution. Besides this witness, there are normal witnesses of Police.
16. We have no quarrel with the proposition laid down in the aforementioned authorities. However, these authorities, on account of peculiar circumstances, are distinguishable on facts with the present case. Therefore, the principles laid down in these authorities are not applicable to the facts of the present case.
17. The cumulative effect of the above referred evidence is that the prosecution case was full of contradictions. The version given by Abdul Haq is directly in conflict with F.I.R. And other material collected by the prosecution in support of the charge against the accused-respondents. The alleged recovery of crime weapons is directly in conflict with material collected by the prosecution and does not support the same. Therefore, the Courts below have rightly drawn their conclusion that prosecution has miserably failed to prove the case against the accused-respondents. Just for our satisfaction we have discussed respondents and have drawn this conclusion, otherwise this Court can interfere only in acquittal orders if it is proved that the same are perverse, arbitrary and contrary to record of the case.
In view of the above, finding no force in this appeal the same stands dismissed.