' MUHAMMAD YUNUS SURAKHVI J.--- The above titled both the acquittal appeals are directed against a consolidated judgment passed by the Shariat Court of Azad Jammu and Kashmir on 15- 10-1998, whereby the respondents Shah Nawaz Khan, Rang Baz Khan and Aurangzeb were acquitted of the offences allegedly committed by them under section 5, I.P.L. Read with section 302/34, A.P.C. The cross-appeals filed by the State and complainant .Zahir Hussain Shah were dismissed vide the impugned order of the Shariat Court.
2. Feeling aggrieved by the impugned order of the Shariat Court dated 15-10-1998, the State as well as the complainant Zahir Hussain Shah have filed the present acquittal appeals praying therein that the accused-respondents may be convicted for the commission of the offences alleged against them.
' The brief facts of the prosecution case are that in the report of complainant-appellant Zahir Hussain Shah at Police Station Pallandri it was alleged therein that his father Syed Murtaza Hussain Shah and Shah Nawaz Khan accused-respondent were having a dispute over a passage for cattle.
According to the F.I.R. The aforesaid passage was blocked by Shah Nawaz Khan accused- respondent and as such the cattle belonging to the complainant party were obstructed from going to water spring. On 28-7-1993, the complainant party approached Numberdar Bahadar Ali, an ex- member of Local Council of their village, for amicably settling down the dispute between the parties over the said passage. On the move of complainant party Numberdar Bahadar Ali went to spot and asked Shah Nawaz Khan accused-respondent to desist from obstructing the said passage used by the complainant party and to stop blocking the said passage. However, the accused-respondent Shah Nawaz Khan did not abide by the settlement arrived at, whereupon the complainant-appellant, herein, himself removed the stones from the said passage by which the same had been obstructed. On 29-7-1993, the complainant took his cattle to water spring and at about 2 p.m. Shah Nawaz Khan along with his sons Aurangzeb and Rang Baz Khan again obstructed the said passage. The accused respondents were armed with .12 bore guns and .32 bore pistol. The complainant-appellant forbade the accused from blocking the way whereupon the accused-respondents initiated attack on the complainant-appellant. The complainant raised hue and cry whereupon his father Murtaza Hussain Shah also arrived at the scene of occurrence.
Murtaza Hussain Shah, the father of the complainant, asked Shah Nawaz Khan and other accused to refrain from creating any sort of trouble and to avoid any sort of violence. Meanwhile Shah Nawaz Khan who was already armed with .32 bore pistol with an intention to kill fired a pistol shot at Murtaza Hussain Shat the father of complainant-appellant which hit on the lower part of Murtaza Shah. After receiving the injury Murtaza Hussain Shah fell down on he ground. He was taken to Pallandri Hospital but he was still in the way to hospital that he succumbed to the said injury and passed away. The incident according to the prosecution was witnessed by Azrar Hussain Shah son of Manzoor Hussain Shah and Hassan Shah son of Farman Ali Shah, besides the complainant.
4. A written report, according to prosecution, was submitted by the complainant-appellant to S.H.O.
Police Station Pallandri at Barral Bazar where he was on an official duty. The S.H.O. After receiving this report made an endorsement on the back of the application and sent it to police station through constable Muhammad Azad No,1339 for registration of the case. On this report the case was registered at Police Station Pallandri by the Officer Record Incharge of police station against the accused-respondents for allegedly committing offences under section 5, I.P.L. Read with section 302/34, Penal Code.
5. The S.H.O. After sending the application submitted by the complainant-appellant to police station proceeded to the place of occurrence situated, in village Barral Khambah Pairian and thus initiated investigation. The accused persons were apprehended during the investigation and after its completion the accused were forwarded to District Court of Criminal Jurisdiction, Pallandri for facing their trial. The accused-respondents in their statements under section 2,42, Cr.P.C. Denied the allegations 'levelled against them.
6. The prosecution in order to prove its case against accused examined Zahir Hussain Shah, Azrar Hussain Shah, Hassan Shah (as eye-witnesses of the occurrence), Nazim Hussain Shah, Zulfiqar Hussain Shah, Nisar Shah, Tanweer Shah, Asghar Ali Shah, Dr. Rashid Yaqub, Bahadar Ali Khan, Muhammad Raees, Amin-ul-Haq, Raja Shamim Akhtar Khan, D.S.P., Muhammad Kabir Khan, S.H.O.
Incharge Police Station, Sajid Imran Khan, A.S.-I., and Sajjad Hussain Shah. The accused in their statements under section 342, Cr.P.C. Denied the allegations and desired to produce the defence evidence. In their defence the accused 'examined Muhammad Nazir, Muhammad Sharif Khan, Muhammad Haroon and Muhammad Ilyas as their witnesses.
7. The trial court after the conclusion of trial having found the accused-respondent Shah Nawaz Khan guilty of offence of murder awarded him the sentence of 25 years' rigorous imprisonment with a fine of Rs,50,000 and in case of non-payment of fine to undergo a further simple imprisonment of 6 months and acquitted Rang Baz Khan accused by giving him the benefit of doubt vide its judgment, dated 31-3-1996. However, Aurangzeb accused absconded after the conclusion of trial from the trial Court before hearing the arguments and pronouncing the judgment. He was, therefore, proceeded under section 512, Cr.P.C.
8. The aforesaid judgment of the trial Court was challenged "by convict Shah Nawaz Khan respondent and complainant-appellant Zahir Hussain Shah and State also went in separate appeals before the Shariat Court. The Shariat Court vide its order impugned dated 15-10-1998, acquitted the accused-respondent Shah Nawaz Khan by accepting his appeal and cross-appeals filed by the State and the complainant-appellant were dismissed. The absconding accused Aurangzeb who had been proceeded under section 512, Cr.P.C. Was also acquitted by the Shariat Court on appraisal of evidence adduced by the prosecution. Hence these acquittal appeals for conviction of accused-respondents, one by the complainant-appellant, and the other by the State.
9. Sardar Abdul Hameed Khan, the learned counsel for the complainant-appellant, vehemently contended that the Shariat Court fell in grave error by acquitting the accused-respondents, as according to him, the prosecution case stood proved against the accused-respondents beyond any reasonable shadow of doubt. The learned counsel submitted that the Shariat .Court on the basis of surmises and conjectures reached the conclusion that the prosecution case suffers from material illegalities and infirmities. The learned counsel contended that the Shariat Court failed to take note of the fact that the prosecution case is supported by ocular version of eye-witnesses whose presence its even admitted by the accused-respondents. The learned counsel has argued that the F.I.R. In the case was lodged promptly and the eye-witnesses were named in the F.I.R. The evidence of eye-witnesses suffers from no material contradictions whatsoever. All the eye- witnesses, according to the learned counsel for the appellant-complainant, are unanimous on the point that the deceased was killed by a revolver shot fired by Shah Nawaz Khan accused- respondent which hit the lower abdominal part of the deceased who in consequence of said injury fell down and while taking him to Pallandri Hospital he succumbed to the injury. The learned counsel submitted that the time and place of occurrence, as alleged by the prosecution, are even admitted by the defence; however, from the cross-examination by the defence on the eye- witnesses it appears that the manner of incident is disputed by the prosecution. The learned counsel contended that in their statements under section 242, Cr.P.C. The accused-respondents never raised a counter-version similarly in their statements under section 342, Cr.P.C. The accused- respondents also failed to raise a specific counter-version but the way the eye-witnesses were cross-examined by the defence it transpires that the case of defence seems to be that the accused Shah Nawaz Khan did not murder the deceased but the fact of the matter is that P.Ws.
Zahir Hussain Shah and Azrar Hussain Shah attacked the accused party whereupon the deceased intervened and tried to stop them from chasing the accused party. P.W. Azrar Hussain Shah who was armed with .30 bore pistol opened attack on accused Shah Nawaz Khan and both Azrar Hussain Shah and accused Shah Nawaz Khan scuffled with each other and during the course of scuffling the pistol of Azrar Hussain Shah went off and thus, the deceased sustained a bullet injury which ultimately resulted into his death. The learned counsel contended that if both the proposition and defence versions are taken into a juxta-position the version taken by the defence seems to an afterthought and concocted which does not appeal to a common mind. The prosecution story as alleged by the prosecution not only stands established by the ocular version of the eye-witnesses who have no animosity or grudge to falsely implicate the accused-respondents but is also supported by the medical evidence as well as the evidence of recoveries on the pointation of accused-respondents. The prosecution story also stands corroborated by the blood-stained clay and stone recovered from the place of occurrence and clothes of deceased wearing at the time of occurrence. It was further contended by the learned counsel for the appellant-complainant that the motive as alleged by the prosecution also stands proved by the evidence of the prosecution.
The motive, according to the learned counsel for the appellant, is also a corroborative piece of evidence lending support to the case of the prosecution.
10. Ch. Muhammad Azam Khan,, another learned counsel for the complainant and Ch. Muhammad Mushtaq, the learned Additional Advocate-General appearing on behalf of the State, fully supported by the contentions raised by Sardar Abdul Hameed Khan, the learned counsel for the complainant.
11. Controverting the arguments advanced by the learned counsel for the appellant, Raja Muhammad Hanif Khan, the learned counsel for the respondents, argued that the prosecution failed to establish 'its case against the accused-respondents. According to the learned counsel the case was registered on the basis of a belated F.I.R. Which casts a serious doubt on the prosecution case. He further contended that the oral testimony of the eye-witnesses was not corroborated by the medical evidence. The learned counsel maintained that the recoveries effected from the accused-respondents were also doubtful and when the evidence of both the prosecution and the defence is appraised in minute details it reflects that a. False case was registered against accused Shah Nawaz Khan and his two sons Aurangzeb and Rang Baz Khan. The learned counsel further argued that the eye-witnesses were interested and interrelated to the deceased and, were inimical to the accused party. The learned counsel also argued that some material prosecution witnesses were given up by the prosecution and this fact also adversely reflects on the prosecution, story. The reports of Chemical Examiner and Arms Expert were not tendered in evidence. In absence of the aforesaid evidence, the prosecution case suffered from serious illegalities and infirmities. Thus, the Shariat Court committed no error in acquitting the accused-respondents. The learned counsel also argued that insofar as the prosecution case against accused-respondents Aurangzeb and Rang Baz Khan is concerned, the 'prosecution miserably failed to prove its case against them beyond any reasonable shadow of doubt. The learned counsel emphasized that the evidence of eye- witnesses was so much interested that they attributed a definite role to these accused- respondents by alleging that they also inflicted injuries on the person of deceased by using the "butts" of their rifles, but the, same does not find support from the medico-legal evidence. The learned counsel also submitted that on purgation of eye-witnesses. Hassan Shah was found to be a witness worthy of no credence as he was not found "Adil". The other two eye-witnesses were found to be "Adil" but since they are interested witnesses, therefore, their evidence could not be relied upon in absence of a strong corroborative evidence which is missing in the instant case.
12. After hearing the respective contentions of the learned counsel for the parties and perusing the record, in the first instance we have to take into consideration the respective versions of the prosecution as well as that of the defence. The prosecution case precisely is that on the day of occurrence the accused party assaulted the complainant party after being armed with .12 bore guns and .32 bore pistol. The deceased who was forbidding the accused to avoid any type of dispute stood face to face at a distance of 1/3 Karm (less than two feet) from accused Shah Nawaz Khan and was hit by a revolver bullet fired by the aforesaid accused. The victim and the assailant did not scuffle with each other, whereas the defence version is that the deceased was not murdered by the accused Shah Nawaz Khan but on the other hand P.Ws. Azrar Hussain Shah and Zahir Hussain Shah attacked the accused party upon which deceased intervened to stop them from going towards the accused party. The complainant on the intervention of his father stopped, however, Azrar Hussain Shah, who was armed with .30 bore pistol attacked the accused Shah Nawaz Khan but deceased Murtaza Hussain Shah intervened in order to avoid any sort of mishap and during the course of scuffling the .30 bore pistol of Azrar Hussain Shah went off accidentally and thus, the deceased sustained bullet injury which ultimately resulted into his death. This version becomes apparent from the suggestions made to the eye-witnesses during the cross- examination from the defence side. So when both the versions are taken into a juxta-position and appreciated in its true perspective, the version taken by the defence seems to be improbable, concocted and an afterthought for the reason that in their B statements under section 242, Cr.P.C.
The accused never raised a counter-version. Similarly in their statements under section 342, Cr.P.C.
The accused also failed to take specific counter-version. At the same time we are also conscious of the fact that in absence of their raising a counter-version in statements under sections 242 and 342, Cr.P.C. The accused are not debarred from taking any counter-version at the time of cross- examining the prosecution witnesses. If a defence plea is pulpable from the prosecution story itself the accused cannot be deprived of taking C the benefit of the said version. Similarly if a defence version is taken and the same is not proved the prosecution is not absolved of its responsibility to prove the case against the accused persons beyond any reasonable shadow of doubt. It is a cardinal principle of criminal jurisprudence that the prosecution in order to prove its case has to stand on its own legs and is burdened with the responsibility to prove the ease against the accused persons.
13. From the trend of cross-examination made by the defence on the eye-witntsses, their presence and presence of accused Shah Nawaz Khan on the place of occurrence stands admitted by the defence. Similarly, the place of occurrence is also not disputed by the defence. The recovery of blood-stained clay and a stone from the place of occurrence also suggests that in fact the occurrence took place on the same place which is alleged by the prosecution. Now the only question that remains to be resolved is as to whether the version taken by the defence is plausible and reasonable or that of the prosecution. The appraisal of evidence of eyewitnesses who stood the test of cross-examination establishes the fact that the occurrence took place in the manner as alleged by the prosecution and not as suggested by the defence.
14. Another factor which has taken us to the conclusion that the prosecution version seems to be more probable and plausible is that the said version was taken by the prosecution right from the day of occurrence, and not after a year as was taken by the defence while cross-examining the prosecution witnesses. The defence has taken a definite stand in the cross-examination that instead of .32 bore revolver's shot the deceased was murdered by a shot of .30 bore pistol which was in the hand of P.W. Azrar Hussain Shah but this story having not been substantiated, either by the defence evidence, or being pulpable from the prosecution story, was rightly disbelieved by the trial Court on the basis of sound and cogent reasons.
15. It is also the case of the defence that the .32 bore revolver of accused Shah Nawaz Khan was replaced by the police as the same was not in a working order and in its place .30 bore pistol belonging to P.W. Azrar Hussain Shah was shown to have been taken into possession by the Investigating Agency vide the recovery memo. This assertion of the defence does not find support from any evidence either led by the prosecution or the defence. The defence also challenged the recovery of crime weapon on the ground that the revolver recovered from the accused was bearing two numbers but at the time of recovery the recovery memo. reveals that it was having only one number. It is indeed correct that the revolver recovered at the instance of accused Shah Nawaz Khan has two numbers but the fact that it has two numbers does not strengthen the case of the defence nor there seems to be any fun in planting the said weapon of offence. It appears that at the time of recovery the number of revolver which was on a conspicuous place was entered in the recovery memo. By the police and the second number which one cannot find at a first glance was not mentioned by the Investigating Agency. The defence case also seems to be that in fact the F.I.R. Was lodged by one Zakir Hussain Shah in which it was disclosed that the deceased was murdered at the hands of Azrar Hussain Shah and the F.I.R. Lodged by the complainant was a belated one and for this very reason it was lodged at police station at about 8 p.m. The above assertion of the defence stands negated by the evidence of S.H.O. And the second Officer Incharge of police station. The S.H.O. Made a categorical statement that in fact F.I.R. Was presented to him at Barral Bazar and on the back of application, presented by the complainant, he made an endorsement and sent it through constable Muhammad Azad towards police station which was at a distance of 12 miles from Barral Bazaar. The said constable travelled the journey on his foot and for this very reason the F.I.R. Was lodged at police station at 8 p.m. The alleged delay in the lodgment of F.I.R. Has been sufficiently explained by the prosecution by the evidence of S.H.O. Who initially made an endorsement on the application presented by the complainant-appellant and then sent the same through a constable Muhammad Azad to police station. This fact is further supported by the evidence of second officer Incharge of police station. From the police record it also transpired that the Investigating Agency in performance of its official functions lodged the F.I.R.
At police station at 8 p.m. Therefore, the explanation furnished by the prosecution with regard to the delay in the lodgment of F.I.R. Being satisfactory has been relied upon by the trial Court and there seems to be no earthly reason to disagree with the opinion expressed by the trial Court. The Shariat Court, in our view, committed an error in dislodging the version of the prosecution on the basis of alleged belated F.I.R.
16. A note may also be taken of the fact that Zakir Hussain Shah, as claimed by the defence, who allegedly reported the incident of murder in the earliest opportunity to the police that the deceased Murtaza Hussain Shah had been murdered at the hands of Azrar Hussain Shah was not examined by the defence as its witness. This obviously leads to the presumption that he did not support the version of the defence, if he had appeared as a defence witness. Another witness from the side of defence, Muhammad Nazir, was produced who has deposed that in his presexe S.H.O.
Kabir and Zakir. Hussain Shah did not talk to each other and in his presence Zakir Hussain Shah did not lodge the report. From the critical analysis of the prosecution as well as the defence evidence, it becomes abundantly clear that in fact Zakir Hussain Shah lodged no F.I.R. At police station with regard to the occurrence. The mere fact that Bahadar Ali and Tanweer Hussain Shah in their statements deposed that on the day of occurrence police reached on the spot at such and such time did not contradict the record of police. The statements of S.H.O. Kabir Khan and A.S.-I. Sajid Imran, and Zahir Hussain Shah when read together, the logical conclusion seems to be that the written report was presented at Barral Bazar before S.H.O. By Zahir Hussain Shah who sent the same to police station after making an endorsement on the said written application. As the Police Officer by making an endorsement and sending the same to police station performed his functions in his official routine, therefore, the official act performed in normal course of events has the presumption of truth. In our view the delay in lodging the F.I.R. (which is not found in the instant case), assumes importance when the identity of the accused persons is doubtful and is not established beyond any reasonable doubt. In the instant case the identity of the accused was never in dispute.
Therefore, the delay in lodgment of F.I.R. Cannot be H applied like a rule of limitation as is applied in civil cases. Our aforesaid view is fortified by the reported case titled Bashir Ahmad v. The State 1980 PCr.LJ 25.1 and Khalil Ahmed and others v. The State 1986 PCr.LJ 2728. Therefore, we have no doubt in our mind that in fact Zahir Hussain Shah lodged the F.I.R., regarding the occurrence at Barral Bazar which was subsequently sent by the S.H.O. To police station on which a formal Case No,43 of 1993 was registered at 8 p.m. At Police Station Pallandri.
17. The Shariat Court has not relied upon the testimony of Hassan Shah, the eye-witness, who was not found "Adil" in purgation but we are of the view that his evidence can be believed in a case falling outside the ambit of "Qisas", particularly so when his presence at the place of I occurrence is admitted by the prosecution itself. However, a great caution is to be used in appraising his evidence. We have decided to believe those portions of his statement which ring true and to, discard those portions which do not inspire any confidence.
18. The learned counsel for the defence seriously criticized the recovery of crime weapon at the instance of accused Shah Nawaz Khan in presence of Hassan Shah and Asghar Ali Shah, the witnesses for recovery of the crime weapon. It is an admitted fact that the house of Hassan Shah is located near the place of occurrence. Hassan Shah has also no relation with the deceased, whereas the other marginal witness of recovery memo. Is Asghar Ali Shah, who is brother-in-law of deceased and his house is also located at a distance of one and a half miles from the place of occurrence. During the recovery of weapon of offence revolver P.1, one crime-empty bullet and four live rounds of bullets were also recovered at the instance of accused Shah Nawaz Khan from his house along with the licence of the said revolver belonging to the accused. The case of defence seems to be that the aforesaid weapons were replaced by the police. In support of their version Muhammad Sharif and Muhammad Ilyas were produced in defence. The trial Court rejected the evidence of Muhammad Sharif and Muhammad Ilyas on the ground that the crime weapons were not shown to Muhammad Sharif and Muhammad Ilyas during their statements in the Court.
Furthermore the above defence witnesses are so much partisan and interested that they tiled their affidavits in favour of accused regarding their innocence and Muhammad Sharif, the defence witness, even went to the extent that the planted arms were purchased by him. However, the fact remains that this version of the defence appears to be an afterthought, as the crime weapon, the other crime-empty and four live rounds of bullets were recovered along with the licence from the house of the accused Shah Nawaz Khan on his pointation. The learned counsel for defence has given undue importance to the point that on the .32 bore revolver two numbers were engraved as the revolver belonging to accused Shah Nawaz Khan was not in order, therefore, the .30 bore pistol was introduced by the police. So far as the above assertion of the defence is concerned, it is indeed correct that on the revolver two numbers were engraved. In one place No,2647 and in the other place No,2648 appears, but, as said earlier, the number which was on conspicuous place was entered in the memo. Of recovery. However, it cannot be construed by any stretch of imagination that the prosecution introduced the second number as there seems to be no point in doing so: The fact that the revolver which was belonging to the accused Shah Nawaz Khan was the same which was in possession of the accused on the basis of licence or is the other one as was allegedly replaced by the police could have been easily proved by the accused Shah Nawaz Khan after summoning the record from the District Magistrate or the Sub-Divisional Magistrate and on the basis of evidence on record, the matter could have been resolved but by not doing so and omitting to show the crime weapons to the defence witnesses, the inevitable' conclusion is that in fact the same revolver was recovered at the instance of accused which was in his possession and used for the commission of offence. However the recovery of .12 bore guns on the pointation of accused Rang Baz Khan and Aurangzeb Khan has been discarded by the trial Court, but so far as the recovery of a stone and blood-stained clay from the place of occurrence and the clothes worn by the deceased at the time of occurrence are concerned, their recovery seems to be unchallenged.
The trial Court in support of the version of the eye-witnesses has believed the evidence of Dr. S.M.
Rashid Yaqub, who deposed in the Court that deceased Murtaza Hussain Shah died on account of fire-arm injury which hit him on the lower abdominal part. The doctor opined that the said injury was caused by a revolver/pistol shot and the entry wound was blackening as such the distance between the victim and assailant was less than two feet. However, this witness also deposed that there were found no other injuries on the person of deceased caused by the blunt weapon. To this extent the medical evidence is in conflict with the ocular version. Even the prosecution did not re- examine the said witness on the above point. Therefore, it was observed by the trial Court that on the person of deceased the only injury found was that of fire-arm and not by blunt weapon. The Shariat Court opined that at the time of occurrence the "Qameez"/shirt which was worn by the deceased was having a hole on the left side as such in the opinion of the doctor it could have been possible if the Qameez/shirt of the deceased was being caught by someone and is pulled on the right side. This opinion on the part of the doctor was rejected by the trial Court and it was observed that no importance could be given to this sort of explanation furnished by the doctor. The trial Court relied on a case titled Muhammad Siddique and 5 others v. The State 1991 PCr.LJ 866, wherein it was observed at page 871 of the report in a following manner:- "The doctor gave the duration between the injuries and, death,as half to one hour. It was suggested that if the duration given by the doctor was correct, then it was very much likely that on arrival of the eye-witness, Abdul Khaliq should have been alive. The version of the eye-witness, on the other hand, was that he found Abdul Khaliq dead. There was a definite contradiction between the medical evidence and the testimony of the witness. It is correct that the doctor, in his testimony, described the aforesaid duration between the infliction of injuries and the death, but it is well- accepted that the testimony of the doctor is to be evaluated like the testimony of any other witness. It is not to be given higher credence to condemn the testimony of an eyewitness. The evidence of the doctor is an Expert's opinion. An Expert's opinion is not taken as a gospel truth as it depends upon the skill, experience and caution taken by the Expert in expressing his opinion..In present case, the deceased suffered fire injuries at the right lumber region. The diameter of the injury was 5 c.m.; viscera was protruding the wound. He further suffered five . Wounds on the left thigh, The left thigh was fractured. As a result of these injuries, which were the wounds of entrance, three other exit wounds were noticed below the left buttock. The cause of death was excessive haemorrhage and injury to vital organs. Right side of peritoneum, small intestines and right kidney were found ruptured. The aforesaid description of damage caused to the deceased, suggests that he must have expired within minutes. It is, therefore, wrong to suggest that the duration described by the doctor was a conclusive proof of the fact that it took half to one hour to the deceased to expire on receiving the fire-arm injuries. This conclusion finds support from the testimony of Mst.
Maqbool Jan, in whose house the occurrence took place. Her presence on the scene is unquestioned. In answer to a question in cross-examination by the Public Prosecutor, she deposed that she saw Abdul Khaliq being murdered. He was bleeding from abdomen and legs and he was dead. This suggests that the deceased instantaneously succumbed to the fatal injuries."
19. The factum of recovery is further substantiated by the site plan Annexure "H" prepared by Amin- ul-Haq, Patwari, and by its explanations Annexure "P.H./1", wherein the distance of various points has been shown. The said site plan and the explanations are not in conflict with the version of the eye- witnesses. It is also not disputed by the defence that the blood-stained clay and the blood on the clothes of deceased was not of a human being. The recovery of revolver was effected after the 3rd day of occurrence from the house of accused Shah Nawaz Khan. In this view of the matter the reports of Serologist and Arms Expert which were not tendered in evidence and the same were not allowed to be produced at the later stage do not adversely affect the case of the prosecution.
20. Bahadar Ali and another witness of the presecution fully supports the prosecution version with regard to the motive. One day prior to the occurrence on the move of Murtza Hussain Shah that his passage for cattle had been blocked by accused Shah Nawaz Khan on account of which his cattle could not go to the water spring, the witness stated that he called upon Shah Nawaz Khan accused and asked him to remove the stones by which he had blocked the passage, but the accused refused to act upon the settlement suggested by the witness upon which Rang Baz Khan accused suggested that he would himself remove the stones. On this accused Shah Nawaz Khan retaliated and replied that he would be dealt with accordingly. From the statement of Bahadar Ali the motive as alleged by the prosecution stands proved and the same was not rebutted by any of the defence witnesses. Bahadar Ali happens to be an independent witness whose evidence read with the evidence of eyewitnesses proves the motive as alleged by the prosecution. The trial Court has also observed that Azrar Hussain Shah witness hails from the same place where the occurrence is alleged to have taken place. He had come on the shrine of his grandfather and on hearing hue and cry was attracted on the scene of occurrence and thereafter he narrated the details of incident.
Such a witness in the opinion of the trial Court could not be termed as "Wajtakar witness". Though Azrar Hussain Shah happens to be the real nephew of Murtaza Hussain Shah, but he had no direct enmity with the accused. Similarly Zahir Hussain Shah who happens to be the son of deceased was having no animus or grudge against the accused. Hassan Shah, another eye-witness, also corroborates the evidence of eye-witnesses Azrar Hussain Shah and the complainant. The trial Court also opined that if the evidence of eye-witness is read along with the version taken by the accused-respondents then one comes to the conclusion that in fact these witnesses were present on the scene of occurrence and they saw accused-respondent Shah Nawaz Khan firing upon deceased as a result of which he was injured and ultimately died.
21.In a case reported as Ahmad Khan and 2 others v. The State 1991 PCr.LJ 301, Mr. Justice Ajmal Mian, J. (as he then was), while dealing with the testimony of related witnesses observed in the report at page 320 in a following manner:--- "In the instant case as observed hereinabove the defence has not been able to bring on record any material to indicate that P.W.3 Muhammad Ismail had any animus against the accused. His testimony as a whole seems to be convincing, natural and truthful, which inspires confidence. The mere fact that he happened to be the brother of the deceased in our view itself is not sufficient to discard or to insist on corroboration. The cases relied upon by Mr. A.K. Brohi referred to hereinabove are distinguishable inasmuch as admittedly in the said cases the interested witnesses were on inimical terms with the accused. Whereas the cases relied upon by Mr. Kazi Akhtar particularly the aforesaid Supreme Court case of 1975 indicate that a Court may even rely upon the testimony of an interested witness if it is convincing, natural and truthful in the context of the facts of the case. It may be observed that in respect of an interested witness there is no rule of law that his testimony cannot be relied upon without corroboration if otherwise it seems to be natural, convincing and truthful. However, as a matter of prudence courts insist upon corroboration by independent piece of evidence, from unimpeachable source not already tainted with doubts. But in the instant case we are inclined to hold that P.W.3 Muhammad Ismail cannot be termed as an interested witness merely because he happened to be the brother of the deceased. A relationship simpliciter between a witness and a deceased does not make him an interested witness as already observed hereinabove. The defence is required to show something in addition to the relationship to indicate that the witness had motive to implicate the accused falsely."
22. The Shariat Court has expressed the view that at the time of occurrence the deceased and accused Shah Nawaz. Khan stood in front of each other, whereas the medico-legal report shows the entrance wound on the right side downwards umbilicus and the exit wound on the left buttock.
It expressed the view that normally the wound should have been on the right side of buttock if both the assailment and the victim were standing in front of each other at the time of incident, but the hole having blackening of 7-1/2 c.m. In diameter is on the left side of Qameez/shirt. According to the Shariat Court the hole shows that the bullet hit the deceased on the left side of the chest, but the post-mortem report shows the entrance wound on the right side below umbilicus. These observations were made after examining the Qameez/shirt worn by the deceased at the time of occurrence. In the same context it was observed by the Shariat Court that the bullet was fired when the barrel of revolver was in close contract with the body of the deceased. The Shariat Court went on observing that when the version of prosecution and that of the defence are weighed the balance tilts on the side of defence for the reason that during scuffling the Qameez/shirt of deceased might have been pulled from left to right side. Therefore, the Shariat Court disbelieved the evidence of eye-witnesses produced by the prosecution. We have also examined the Qameez/shirt worn by the deceased at the time of occurrence. It is true that there is a hole having blackening of 7-1/2 c.m. In diameter around it on the left side of Qameez/shirt but . None of the prosecution witnesses nor the doctor have deposed in their evidence that bullet hit the deceased on left side of the chest. In the postmortem report the doctor has shown the entries of wound on the right side below umbilicus. The doctor also observed that the same was possible if during the scuffle the Qameez/shirt of deceased had been pulled from left to right side. The above observation made by the doctor in his statement has been rejected in the previous part of the judgment as none of the eye-witnesses have deposed so. So in absence of statements of eye- witnesses to the same effect, we cannot presume a fact but at the same time we are of the view that when deceased and accused Shah Nawaz Khan were in front of each other at a very small distance, it was but natural for the victim to change his direction Similarly the accused in order to do away with the life of the deceased also might have changed his direction. It was not expected of the victim of offence to stand like a milestone in front of accused. To save his life the victim might have moved and changed his direction as a consequence of which the blackening on the Qameez/shirt of deceased appears on the left side and the bullet might have travelled in a slanting way seriously damaging the umbilicus region. In our view this injury was inflicted by the accused on the deceased from a very close range, that is why there was blackening, bruising and tattooing around the wound in an area of 8 c.m. The ocular account of the eye-witnesses is also to the same effect that at the time of occurrence the deceased and victim were standing at a distance of about 2 feet from each other. It is also possible that the bullet of revolver while slanting the umbilicus might have travelled to the left buttock from where the exit wound is found. The Shariat Court also seems to have been impressed by the fact that the prosecution story becomes doubtful as the eye-witnesses deposed that the deceased after receiving bullet injury by Shah Nawaz Khan accused fell down on the ground and was beaten by accused Aurangzeb and Rang Baz Khan with the Butts of rifle but this deposition does not find any corroboration,by the medical report or injury sheet prepared by the Investigating Officer. According to the doctor there was only one fire-arm injury on the person of deceased. The mere fact that the evidence of eye-witnesses is not corroborated by medical legal evidence in respect of Aurangzeb and Rang Baz Khan, accused, we cannot discard the entire evidence of the eye-witnesses. The maxim "falsus in uno falsus in omni bus" has since long been discarded by the superior Courts of Azad Jammu and Kashmir and Pakistan. The grain has to be sifted out of the chaff. When main part of the deposition is true, it should not arbitrarily be rejected because of want of veracity on perhaps some minor point.
Therefore, where a witness is stated to have given false evidence to implicate some innocent persons besides the real culprits, the whole deposition may not be rejected when the most of evidence which rings true can be legally relied upon. Our aforesaid view finds support from a reported case titled Muhammad Sharif v. The State PLD 1978 SC (AJ&K)
146. It, therefore, follows that where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence alone without any further corroboration but in the present case the ocular evidence gets further support from ample circumstantial evidence. Before discussing the L available confirmatory evidence, it would be expedient to point out as to what corroboration means, "Corroboration' of the statement of interest witnesses does not mean that the statement of the witness is false or untrue.
What is really meant is that to accept it as wholly true it is desirable that it should have a confirmatory support. In fact when it is said that the statement of a witness needs corroboration to support it, this finding proceeds on the basis that version of P.W. Is prima facie correct but by way of precaution it needs .Corroboration to attain clarity. What quantum and quality of the corroboration of the interested witnesses is required is elaborately gone into in a case titled Nazir Ahmed and others v. The State PLD 1962 SC 269. After a thorough probe it was observed therein:-- "But we had no intention of laying down an inflexible rule that the statement of an interested witness who has (by which expression is meant a witness who has a motive for falsely implicating an accused person), can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes.
In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty the Court will in the case of an ordinary interested witness look for some circumstances that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is What is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness.
Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."
23. It is, thus, manifest that corroboration is insisted upon only to satisfy the mind of the Court that the witnesses in the circumstances of the case are speaking truth. What facts and circumstances are sufficient to satisfy the mind of the Court about the truthful nature or otherwise of the testimony of an ocular interested witness, is a question which varies from case to case and no hard and fast rule can be formulated on the point.
24. After stating as to what in fact corroboration means and connotes, we now take up the confirmatory evidence available in the case in support of the P.Ws.:--
(i) The medical evidence. The doctor who conducted the postmortem examination on the dead body of deceased found firearm injury exactly on the same part of body of deceased, whereat the ocular version alleges. He was fired by Shah Nawaz Khan accused-respondent. This fact clearly testifies the version of ocular witnesses that the deceased was in fact fired at in the way as deposed;
(ii) the time of occurrence as well as the place of occurrence and the presence of eye-witnesses and accused Shah Nawaz remains undisputed even by the defence. The injury on person of deceased tends to enhance the credibility of the statement of prosecution witnesses as the duration of injury fully corroborates with the deposition of eye-witnesses.
(iii) the distance between the assailant and the victim and the blackening and tattooing on the wound makes the credibility of the eye-witnesses more reliable;
(iv) the presence of blood-stained clay, stone and its recovery from the site of occurrence also support the version of the prosecution. The deceased was done to death at the place testified by the eye-witnesses; and the recovery of the clothes worn by the deceased at the time of occurrence is also in nature of confirmatory evidence.
25. In view of the confirmatory and corroborative evidence stated above, we are satisfied that the eye-witnesses so far as accused-respondent Shah Nawaz Khan is concerned, are telling truth and there is nothing to cast doubt on their testimony. The recovery of crime weapon at the instance of accused and the empty bullet and the rounds of live bullets found from revolver along with licence of respondent from his house is a further corroborative piece of evidence.
26. The nutshell of the above discussion is that the Shariat Court acted illegally in accepting the appeal filed by accused-respondent Shah Nawaz Khan against his conviction recorded by the trial Court. In our view the prosecution has sufficiently brought guilt home to the accused-respondent Shah Nawaz. Khan. He is, therefore, found guilty of the offence of murder of deceased Murtaza Hussain Shah. At the same time we are convinced that the eye-witnesses produced by the prosecution in support of its case do not fulfil standard and the requirement of evidence needed in cases of "Qisas", but the offence of murder liable to "Tazeer" has been amply proved by the prosecution. We therefore, by accepting the appeals of complainant-appellant and the State, by setting aside the impugned judgment of the Shariat Court, convict the accused-respondent Shah Nawaz Khan for committing the offence of murder liable to Tazeer under section 302, Penal Code by awarding him the sentence of life imprisonment and a fine of Rs,50,000 under section 3 read with section 24 of the Islamic Penal Laws Act. In case of non-payment of fine he will further undergo a sentence of six months' simple imprisonment. The fine, if realized from the convict-respondent, shall be paid to the legal heirs of the deceased. However, the convict-respondent shall also be entitled to the benefit of section 382-B, Cr.P.C. And the period which is spent in lock-up during the trial of the case shall be deducted from his sentence. The convict-respondent shall be taken into custody and sent to prison but if he is already in custody he shall undergo the above mentioned sentence.
27. The mitigating circumstances for not awarding the capital punishment have also been taken into consideration by us which are as follows:--
(i) that the convict-respondent was not awarded capital punishment by the trial Court who had the opportunity of recording the evidence of the prosecution and was in a better position to have its opinion on the appraisal of prosecution evidence;
(ii) that the Shariat Court vide its impugned judgment acquitted the accused-respondent Shah Nawaz Khan and thus he had an expectancy of life; and
(iii) that the prosecution evidence has been disbelieved with regard to accused Aurangzeb and Rang Baz Khan accused-respondents.
28. So far as the case of respondents Aurangzeb and Rang Baz Khan is concerned, the benefit of doubt given to them by the trial Court as well as the Shariat Court does not appear to be based on flimsy and artificial grounds and we uphold the same as the prosecution failed to prove their guilt beyond any reasonable shadow of doubt. The appeal, therefore, filed by the State as well as the complainant against these accused-respondents stands dismissed. These accused, if they are already in custody, shall be released forthwith. A copy of this judgment shall be sent to the convict- respondent Shah Nawaz Khan if he is already in custody in judicial lock-up.