1. ' SARDAR MUHAMMAD SHARIE KHAN, J.-This case arises out of a reference made by the District Criminal Court, Muzaffarabad for confirmation of the retaliation sentence (death) which has been passed on Mohammad Imtiaz appellant under section 5 of the Islamic Penal Laws Act, 1974 and also out of an appeal lodged by the said person who is condemned to death by way of `Qisas'. This judgment will dispose of both the reference as well as the appeal.
2. ' The appellant, Mohammad Imtiaz was tried by the said Court consisting of Sessions Judge and District Qazi, Muzaffarabad under section 5 of the Islamic Penal Laws Act, 1974.
3. ' Briefly, the case of the prosecution goes as follows :- ' The report P. A. Was lodged by Manzoor Hussain at the Police Station, Chakar on 4th April, 1975 stating the facts and circumstances of the case therein. After the occurrence, the same day Mohammad Zahoor, the person injured was also carried to the Police Station on a cot in a state of coma and who afterwards succumbed to the injury inflicted on his, head without regaining consciousness.
4. ' Manzoor Hussain, the .Maker of the report while making the report disclosed that Mohammad Zahoor was the son of his paternal aunt and was also married to his sister, whereas the appellant Mohammad Imtiaz is a.Son of his maternal uncle.
5. ' It is said that Mohammad Imtiaz went out at work on 3rd April, 1975 from the house of the complainant where he had been staying and he after the completion of the work and taking hiS meals from the house of one Ibrahim Shah was returning to the house of hil paternal aunt's son when in the half way wooden-light exhausted and in order to have a fresh wooden-light from the house, of Mohammad Zahoor deceased, went to his house who and his wife both out of regard of .Relationship existing between them, asked the accused to stay at their house for the, night and so he stayed there for the night. At the house of Mohammad Zahoor, Mst. Resham Bi, his mother and one Mst.. Jamila daughter of Nabi Shah were also present.
6. ' Mohammad Imtiaz was provided a bed in the very room where after his having gone to sleep, Mohammad Zahoor deceased and his wife slept together on the same `charpar Mst. Jamila and Mst. Resham Bi slept in separate parts (rooms) of the house.
7. ' It so happened at about mid-night that Mohammad Imtiaz accused rose up and went nearby to the cot of Mst. Ajeeba Begum wife of Mohammad Zahoor deceased and began to caress her face.
8. The husband of the woman was already placing his hand on the head of his wife and thus the hand of the accused while caressing her struck against the hand of Mohammad Zahoor deceased who in this way came to know the misdeed of Mohammad Imtiaz accused. It was a bad activity on the part of the accused who was reproached by the deceased and also was given a beating. After having been beaten, the accused was turned out of the house by Mohammad Zahoor and his wife at the very nick of time during the night. So disrespectably the accused had to leave the house of Mohammad Zahoor deceased and he in order to pass the remaining part of the night had to go to the house of Mst. Sharbat Bi who was also related to him where he slept for the rest of the night, and he in the next morning returned to the house of Manzoor Hussain complainant and told him that Mohammad Zahoor having picked up a quarrel last night with him beat him.; ' On 4th April, 1975 Manzoor Hussain alongwith a few persons, namely, Mohammad Amin, Mir Zaman, Sadat Zaman, Siddique, Hanif and Mohammad Imtiaz accused was busy in the husbandry of :he land known as Walachh' . The ploughing and digging of the land was going on when at about Noon time Mohammad Zahoor brought meals from the house of Manzoor Hussain to serve the persons at work in the field. The work was stopped and the meals were taken. After taking their meals, the workmen resumed their work. Mohammad lmtiaz who was digging the land with a spade in order to take revenge from Mohammad Zahoor for the incident of the last night inflicted a blow of a spade {{URDU TEXT}}on the bead of Mohammad Zahoor who on receipt of the same fell down, This was a fatal blow with the head of a spade which at the very fall on the head of the deceased rendered him unconscious. He was got admitted in C. M. H., Muzaffarabad by the Police where he breathed his last on 5th April, 1975 at a. Run. Due to the said head injury..
9. ' The accused denied the charge levelled against him stating that no doubt he stayed for the night at the house of Mohammad Zahoor as he was asked by both the persons, Mohammad Zahoor deceased and his wife to stay there when he told Mohammad Zahoor that he would take the land back from Sadat Zaman, uncle of the deceased and gave to someone else for cultivation. On this Mohammad Zahoor began to beat him and while being thrashed, he was thrown down the roof of the lowerpart of the houseand he then left the place in an injured condition.In the morning he left for Muzaffarabad and returned in the evening when he learnt of the .Death of Mohammad Zahoor.
10. ' Before we turn to the case of the prosecution, it will be proper here to mention the suggestions made by the aocused to the prosecution witnesses so as to connect the same with the statement of the accused made by him in his defence under section 342, Cr. P. C.
11. ' During the cross-examination of the prosecution witnesses, it was suggested to them on behalf of the accused that the death of Mohammad Zahoor occurred due to a fall from the roof of his house (lower part of the house) when a 'melee' took place between the accused and the deceased at the house of the latter where former had stayed for the night preceding the day of the alleged incident occurring in the field. It was also suggested that during the fight at night, Mst. Ajeeba Begum aimed a blow to hurl on the accused but it, instead of him, fell on the head of the deceased who was removed to the field the next day in order to falsely implicate the accused in the case and it was all done by Sadat Zaman, cultivator of his land from whom he wanted to get the land back. It was further suggested that a demand for meals to take was made to Mohammad Zahoor and his wife by the accused in the last hours of the night which was ill-felt by them.
12. ' No evidence was led by the appellant in his defence.
13. ' The prosecution has examined, Manzoor Hussain, Mohammad Hanif, Mohammad Siddique, Mst.
14. Ajeeba Begum, Mst. Jamila Akhtar, Mst. Sharbat Bi, Fazal Hussain, Abdul Jabbar, Shah Wali Khan, Khani Zaman. Ghulam Hussain, Sardar Sohrab Khan, S. I. Police, Dr. Mohammed Arif, Munshi Abdul Ghaffar, Head-constable and Sardar Abdul Razzaq to establish the.Charge against the accused.
15. ' Manzoor Hussain, the maker of the report, Mohammad Siddique and Mohammad Hand' are the eye-witnesses who deposed unanimously that Mohammad Imtiaz accused is responsible for causing head injury on the person of Mohammad Zahoor with a spade which resulted in his death.
16. The opinion of P. W., Dr. Mohammad Arif, C. M.
0. Is evident on the fact of death of Mohammad Zahoor deceased that it occurred due to the head injury which was caused by a blunt weapon and as per evidence of eye-witnesses already mentioned was inflicted by Mohammad Imtiaz on the persoh of Mohammad Zahoor deceased. The evidence of the ocular witnesses inspires full confidence and there is nothing on record to discredit them. Some of the minor discrepancies in their statements were pointed out by the learned counsel for the appellant to which the trial Court was also made aware. Such discrepancies which are insignificant in nature are bound to creep in the statements of ocular witnesses who are the simple villagers and farmers by profession. So the trial Court has rightly ignored the discrepancies of minor nature from taking them into consideration so as to doubt the evidence of the eyewitnesses.
17. ' Manzoor Hussain and Mohammad Siddique are inter se related to the deceased as well as to the accused and there is nothing visible on record to have motivated them to state against the accused. P. W. Mohammad Hanif is a third person not found related to any side. He is quite an independent and a disinterested person. Nothing against his integrity too was pointed out by the accused. The purgatory, namely, Mohammad Suleman, Faqir Muhammad and Raj Wali have also spoken good about the integrity of the eye-witnesses.
18. ' F. W. Msi. Ajeeba Begum wife of Mohammad Zahoor deceased and ister of Manzoor Hussain P. W.
19. Appeared before the Court below and related about the incident of the night in an unequivocal manner. The part of the heating to the accused is admitted on both sides. Mst. Ajeeba Begum is a daughter of Mohammad Imtiaz's paternal aunt and as such closely related to him. The manner in which the incident of the night was narrated by her is appealing to the mind. The suggestions made by the appellant for the incident of the night are contradictory and inconsistent with each other., How could Mohammad Imtiaz accused, a close relative of the deceased and his wife be turned out of the house for such triflings as suggested by him ? A simple want of meals etc. By the accused could not turn his relatives so ingracious to him. That was no time for meals and so on and so forth we cannot hold that there was any other incident than that of the incident related by the woman. It was certainly a bad activity on the part of the accused to fondle Mst., Ajeeba Begum so as to prepare her for satisfying his lust.
20. ' The unconscious act of striking of the hands of both the males, the husband of the woman on the one side and the accused on the other side, resulted in awakening of the husband and consequent incident of the night as deposed to by the prosecution. The appellant himself appeared before the Court and contended that the evidence of a woman as per Islamic Law is not admissible in evidence in cases of retaliation. His contention, in the circumstances of the case as she does not directly stand a witness to the fact of murder, is devoid of any force. Here, the prescribed standard of evidence under Shariat Law is available in this case for enforcement of "hadd" by way of 'Qisas'..
21. There are three ocular witnesses who are all males and have stated against the appellant that he inflicted a blow of a spade which is heavy one, on the head of Mohammad Zahoor deceased. The spade is a deadly weapon and it was used against the vital part of the body of Mohammad Zahoor deceased. The head of Mohammad Zahoor, a vital part of the body was chosen by the accused for infliction of injury while he was sitting there. At first Mohammad Zahoor was vexed by the accused reminding him of the incident of the night who complained of the vexation so caused to him by the accused to P. W. Manzoor Hussain who was, we think, elderly to both of them. The accused then all at once taking undue advantage of the sitting position of Mohammad Zahoor deceased inflicted a blow of a spade with a full force on his head as a result of which he fell down and became unconscious on the very spot. This injury on the head of Mohammad Zahoor deceased was sufficient in the ordinary course of nature to cause his death. Thus it is quite evident tha Mohammad Imtiaz committed an intentional murder of Mohammad Zahoor deceased for which he was rightly convicted and sentenced to death under section 5 of the Islamic Penal Laws Act, 1974 by way of retaliation.
22. ' Therefore, for the reasons above, the appeal of Mohammad Imtia appellant is dismissed and the reference made by the District Criminal Court. Muzaffarabad is accepted and the retaliation sentence passed on Mohammad Imtiaz, murderer of Mohammad Zahoor, is hereby confirmed.