' MUHAMMAD REAZ AKHTAR CHAUDHARY, C.J.--- Through this appeal the appellant has called in question the validity of judgment of Shariat Court of Azad Jammu and Kashmir dated 23-6-2005, whereby the death sentence, awarded to the appellant by the District Criminal Court, Bhimber, was maintained and the appeal filed by the appellant against the judgment of District Criminal Court was dismissed. The sentence awarded to the appellant was confirmed.
2. The succinct facts forming background of the instant appeal are that a case under section 302, A.P.C. Was registered against the appellant at Police Station Bhimber. Briefly stated the prosecution case, as unfolded in the F.I.R. Is that on 25-4-1997 at 10-30 a.m. The complainant, Muhammad Sharif, along with Khalid Raza son of Muhammad Latif, was going towards the house of Haji Muhammad Afzal, while his son Haider Nosherwan, a saint kind of person, was coming towards his house. The appellant, who was nephew of complainant, was coming behind his son. Where Haider Nosherwan reached near the house of Muhammad Naseer son of Muhammad Khaliq, the appellant opened firing on him. The bullet hit on his backside under the left shoulder. He fell down and the appellant again fired on the fallen Nosherwan. The bullet hit on the left side of his "sacro- iliac joint" and thigh. Sikandar Hayat son of Muhammad Afzal, Muhammad Naseer son of Muhammad Khaliq, also witnessed the occurrence. The accused while firing ran away from the place of occurrence. Prior to the occurrence, the accused gave a threat, that he will kill Haider Nosherwan. The cause of occurrence was the Peer Sahib of Daiwal Sharif appointed Haider Nosherwan as hi`s representative and the accused was angry for the reason that why instead of him, he was appointed as representative of Peer Sahib. He openly announced that he will kill Haider Nosherwan.
3. On this report, P.W.13, Zahid Hussain, Sub-Inspector S.H.O. Police Station Bhimber, registered the case. He proceeded on the spot and took the dead-body in his custody, prepared inquest report and injury sheet Exh.PH and P1. He sent the dead-body to the hospital for postmortem. He recovered the blood of the deceased in presence of Sikandar Hayat and Muhammad Safdar, P.Ws.
2 and 5 and prepared recovery memo. Exh.PC. On the same day he also recovered blood-stained shirt, trousers, Banyan cap of the deceased after the post-mortem in presence of afore-said witnesses and prepared recovery memo. Exh.PE. He also .Recovered five empties of .30-bore from the place of occurrence and prepared recovery memo. Exh. PD in presence of afore-said witnesses.
4. The appellant absconded after the occurrence. On 28-5-1997 Peer Sahib Daiwal Sharif came on the house of complainant on the ceremony of Chehlum of deceased. Many people from the village and adjacent villages congregated there. At 10-30 p.m. The appellant came in the street and fired a bullet with pistol on the complainant, Muhammad Sharif. The complainant attempted to snatch the pistol. The fire of pistol hit on the upper portion of his right leg. After snatching the pistol he threw it and caught the appellant. This pistol was recovered in presence of Shehzad Ahmed and Muhammad Munir, P.Ws. 10 and 11, by Muhammad Ameen, S.H.O., P.W.14. He prepared recovery memo. Exh.PH. After the post-mortem, Dr. Tariq Mehmood, C.M.O., Bhimber, handed over the post- mortem report Exh.PG to the police. According to the post-mortem report the deceased sustained following injuries:-- "(1) One c.m. Circular fire-arm injury over back of the chest (left side) 1-1/2" lateral to the spinal cord at the level of 4th thoraeis vertebra. (Entrance wound).
(2) About one c.m. In diameter oval shaped wound with everted margins over left side of chest anteriorly 2" lateral to the sternum 2-1/2" above the left nipple over third intercostals space (Exit injury No, 1).
(3) One c.m. In diameter fire-arm injury over left thigh (lateral side) on the junction of upper one third and lower two third (Entrance wound).
(4) 1 c.m. In diameter fire-arm injury on medial side of the thigh upper par just below the perineum.
(Exit injury No, 3).
(5) Two superficial fire-arm injuries on left side of left thigh 1" above the injury No, 3 only skin is missing.
' On dissection one bullet was removed from lateral chest wall. Injury No, 1 and the bullet removed have same entrance."
' The doctor concluded as under:-- "He received bullet injuries. Injury No, 1 damaged left lung, pericardium and heart with massive haemorrhage resulting into complete loss of cardiac functions and death.
' Death caused by fire-arm injury (bullet injury)."
' Muhammad Zaman Patwari, P.W.6 prepared site plan Exh.PF and explanation PF/2 in presence of eyewitnesses. After completion of investigation, the police submitted challan under sections 302, A.P.C. And 13/20/65 of Arms Act before the District Criminal Court, Bhimber. After the conclusion of trial, the trial Court awarded death sentence to the appellant under section 302, A.P.C., while the case under sections 13/20/65 of Arms Act was sub judice before the Court of competent jurisdiction. The trial Court submitted a reference to the Shariat Court of Azad Jammu and Kashmir for confirmation of death sentence. Feeling aggrieved from the afore-said judgment, the appellant filed an appeal before the Shariat Court. Both the appeal and the reference were decided by the learned single Judge of the Shariat Court vide judgment dated 23-6-2005, whereby the sentence awarded by the trial Court was maintained. Hence the instant appeal has been filed against the afore-said judgment of the Shariat Court.
6. Raja Saadat Ali Kayani, the learned counsel for the appellant, argued that all the witnesses were close relatives of the deceased and complainant, therefore, no reliance could be placed on their evidence. He further submitted that there are serious contradictions among the statements of witnesses. All the statements of witnesses are amalgamation of contradiction, therefore, the prosecution evidence is not reliable.
7. While emphasizing on the afore-said point the learned counsel referred the statement of Muhammad P.W.1, and submitted that in the examination-in-chief he deposed that two bullets hit deceased on the left side of Abdomen, while three bullets were fired on his left leg when he had fallen down. According to the afore-said witness, five bullets were fired, which hit the deceased, while according to the F.I.R. Two bullets were fired, therefore, this is a serious contradiction and the lower Courts have not considered the same.. He submitted that Muhammad Sharif introduced a new story, which is quite contrary to the version stated in the F.I.R. It was next submitted by the learned counsel that the bullet, which was recovered from the body of deceased, was sent to Fire- arms Expert. According to his report, it was not fired from the pistol, which was recovered from the appellant, therefore, the prosecution has failed to prove the case beyond any shadow of doubt. It was next submitted by the learned counsel that even all the witnesses of recovery are closely related to deceased and in presence of independent witnesses, why the relatives of the deceased and interested witnesses were produced by the prosecution.
8. When the learned counsel for the appellant was confronted to explain whether there is any contradiction among the witnesses regarding time of occurrence place of occurrence and manner of occurrence, he frankly conceded and submitted that he has not conducted the case before the lower Courts. He was further confronted to explain whether the prosecution witnesses have any enmity with the appellant and any such enmity was suggested to them, he could not afford any reasonable explanation. The learned counsel was also confronted to explain that while recording statement of the appellant under section 342, Cr.P.C. He was asked that why the witnesses deposed against him? He nowhere stated that the witnesses deposed against him because they were close relatives of deceased and had enmity with him.
9. It was submitted by the learned counsel for the appellant that it was not a case of extreme penalty. He submitted that keeping in view the age of the convict-appellant he should be dealt leniently.
10. While controverting the arguments of the learned counsel for the appellant, Ch. Jahandad Khan, the learned counsel for the complainant, vehemently argued that it was a daylight murder and the appellant committed the slay of a young man of forty years. The appellant is a desperate and hardened criminal. After the commission of murder of Haider Nosherwan, he was not satisfied and on his Chehlum he attempted to murder the father of deceased. He opened attack on the complainant with pistol and fired bullet, which hit him, therefore, he was not entitled to any kind of leniency. It was next submitted by the learned counsel that the complainant has no enmity with the appellant. If some other would have committed the murder of his son, then why he should have implicated the appellant, who was his nephew. It was next submitted by the learned counsel that in the instant case there were four eye-witnesses including the complainant and all the witnesses were independent. There is complete unison among all the witnesses about the time of occurrence, place of occurrence and manner of occurrence. The judgments of the trial Court and the Shariat Court are based on sound, cogent and tenacious reasoning, which do not require any indulgence by this Court. It was further argued by the learned counsel that the story narrated by the complainant finds corroboration from the statements of eye-witnesses, recovery of pistol and post-mortem report.
11. Mr. Muzaffar Ali Zafar, the learned Additional Advocate-General, adopted the arguments advanced by the learned counsel for the complainant.
12. We have heard the learned counsel for the parties, perused the relevant record and have given our earnest thought to the respective arguments advanced by the learned counsel for the parties.
13. The perusal of record shows that Muhammad Sharif, P.W.1, appeared before the trial Court and deposed that he knows Muhammad Tahir Aziz. He and Khalid Raza were going towards the house of Haji Muhammad Afzal, while Haider Nosherwan, his son, was coming towards his house. The appellant was coming behind his son, while Sikandar Hayat son of Muhammad Afzal was coming- behind the appellant. Muhammad Naseer son of Abdul Khaliq was also with Sikandar Hayat. The appellant started firing upon Haider Nosherwan. Two bullets hit under the left side of his abdomen.
Then the accused fired three bullets on his left leg. The appellant ran away from the scene of occurrence. The victim fell down in injured condition after walking a little bit. He succumbed to the injuries. The appellant is nephew of complainant, while the deceased was his son. The cause of occurrence was that the deceased was a follower of Peer Sahib Daiwal Sharif. The deceased, was appointed as a representative of Peer Sahib. The appellant felt it badly because he wanted to be appointed as representative of Peer Sahib. Prior to the occurrence, he had given various threats to the deceased.
14. Sikandar Hayat also appeared as a witness before the trial Court on 25-7-1998. He deposed that the occurrence took place at 10-30 a.m. On 25-4-1997. He and Muhammad Naseer were going towards the house of Raja Khaliq. Muhammad Sharif and Raza Khalid were going towards the house of Haji Muhammad Afzal. In front of them Haider Nosherwan was going and the appellant was after him. When he reached in front of house of Muhammad Naseer, the appellant started firing with .30-bore pistol on Haider Nosherwan. The bullets hit under his left shoulder on the backside and he fell down, then the appellant again fired bullets on him, which hit on the left side of his "sacro-iliac joint" and thigh. The occurrence was witnessed by Muhammad Sharif, Khalid Raza and Muhammad Naseer. Haider Nosherwan was appointed as representative of Peer Sahib Daiwal Sharif, while the appellant wanted to become representative of Peer Sahib, therefore, he had acrimony with Haider Nosherwan and killed him. Prior to the occurrence, the appellant gave various threats to him. After the commission of murder the appellant ran away and absconded.
Subsequently on the occasion of Chehlum of Nosherwan he appeared and fired with the pistol on Muhammad Sharif, which hit on his ankle. After this incident, the appellant was arrested. The police went on the spot, recovered blood, prepared parcel and also prepared a recovery memo., which was witnessed by him. Five empties of .30-bore pistol- were also recovered from the place of occurrence. A recovery memo. And parcel were prepared. He witnessed the recovery of empties.
The blood-stained clay was recovered and recovery memo. Was prepared. He also witnessed the said recovery memo.
15. Muhammad Naseer, P.W.3, appeared as a witness before the trial Court on 4-2-1999. He deposed that the occurrence took place on 25-4-1997 on Friday at 10-30 a.m. He and Sikandar Hayat son of Muhammad Afzal were coming to their houses from the eastern side. Muhammad Sharif and Khalid Raza were coming from western side to eastern side. In front of them Haider Nosherwan was going towards western side from eastern side. The appellant was going behind Haider Nosherwan. When the accused and Haider Nosherwan reached near his house, the accused fired on Haider Nosherwan with .30-bore pistol, the bullets of which hit the backside of his left shoulder and he fell down. The accused further fired bullets on him, which hit on his left side "sacro- iliac joint" and thigh. The deceased Haider Nosherwan was a saint kind of person. He was appointed by Peer Sahib Daiwal Sharif as his representative. The accused could not tolerate it and openly announced that he will kill him. This occurrence was witnessed by Sikandar Hayat, Muhammad Sharif and Khalid Raza. The accused ran away from the place of occurrence and absconded. Many persons from the village assembled there.
16. Khalid Raza, P.W., who was also an eye-witness, appeared as a witness before the trial Court on 14-9-1998 and deposed that on 25-4-1997 he and Muhammad Sharif, father of deceased, were going towards the house of Haji Muhammad Afzal, while Haider Nosherwan was coming from the house of Haji Muhammad Afzal to his house and appellant was also coming behind him. He started firing with .30-bore pistol on Haider Nosherwan from backside. Two bullets hit on his backside under the left shoulder. He fell down. Then the accused fired three bullets. One bullet hit on his left side "sacro-iliac joint", while the other two bullets hit his left thigh. Sikandar Hayat and Muhammad Naseer also came on the place of occurrence, who were coming from the house of Haji Muhammad Afzal towards the house of Muhammad Naseer. They also witnessed the occurrence.
The cause of occurrence was that Haider Nosherwan was appointed as representative of Peer Sahib Daiwal Sharif, while the accused could not tolerate it and gave threats that he will kill him.
17. There is complete concordance among the afore-said four eyewitnesses regarding time of occurrence, place of occurrence and manner of occurrence. With regard to these points there is no contradiction A between the aforesaid witnesses. According to the witnesses the appellant is nephew of complainant, while the deceased was son of complainant. There was no enmity between the complainant and the appellant. None of the witnesses was suggested about enmity with appellant, therefore, it can safely be said that there is nothing on the record, on the basis of which it could be said that the complainant had any enmity with the appellant. When the complainant had no enmity with the appellant, then why the complainant should have nominated him instead of real culprit. It is a daylight murder. We have gone through the evidence very minutely. No enmity was suggested to any of the prosecution witnesses. From when the statement of appellant was recorded under section 342, Cr.P.C., and he was asked why the prosecution witnesses deposed against him, he nowhere claimed any enmity with them. Thus it is crystal clear that there is nothing on the record that the eye-witnesses had any enmity with the appellant.
18. It would not be out of place to mention here that during the cross-examination even it was not suggested to the complainant that he has given false evidence. He was also not suggested that he has not seen the occurrence. His presence at the place of occurrence along with other witnesses was not disputed during the cross-examination. When there is no cross-examination on the afore- said points, then the same will he deemed to be admitted because it is well-settled principle of law that failure to cross-examine on a particular point shall be deemed to be admitted.
19. As the contention of the learned counsel for the appellant is concerned that according to F.I.R.
Only .Two bullets were fired, while according to the statement of complainant five bullets were fired, it has no substance for the reason that a written application was moved by the complainant before the S.H.O. Police Station Bhimber, in which nowhere it was stated that only two bullets were fired. The application contains that the appellant abruptly started firing on his son. The bullet hit on his backside under the left shoulder. When he fell down the appellant again fired. The bullet hit on the left side of his "sacro-iliac joint" and thigh. It is nowhere mentioned in the application that only two bullets were fired, but it contains that the accused opened firing and when the victim fell down, then he fired other bullets. In the statement it has been clearly deposed by the complainant that when two bullets hit under the left side of abdomen of deceased, he fell down and then the accused fired three more bullets on his left Ieg. The version adopted by the complainant the five bullets were fired by the appellant finds corroboration from statements of Sikandar Hayat, Khalid Raza and C Muhammad Naseer. It also finds corroboration from the post-mortem report.
20. As the contention of the learned counsel for the appellant is concerned that it was reported by Forensic Science Laboratory, Lahore that the crime jacket was not fired from the pistol recovered from the appellant, it has no substance at all. The Forensic Science Laboratory, Lahore did not report as such, but it reported as under:- "The crime jacket of the jacketed bullet marked as "J" does not contain sufficient identifiable data on it. As such nothing can be said as to whether or not the said jacket was fired from the pistol of .30-bore in question."
' The afore-said report clearly shows that the crime jacket of jacketed bullet does not contain sufficient identifiable data for determination whether it was fired from .30-bore pistol or not, therefore, it could not be said that it was reported by Forensic Science Laboratory that it was not fired from the pistol recovered from the appellant.
21. It is also pertinent to note that Khalid Raza P.W.4, appeared as a witness, but during the cross- examination he was not suggested that he has given false evidence and no enmity with the accused was suggested to him. He was only suggested that he gave false evidence due to his relation with the complainant. It is well-settled principle of law that mere relationship is no ground for discarding the evidence of a prosecution witness, unless and until his enmity is established with the accused person. This view finds support from a case reported as Liaqat Ali and others v. Raja Shahid Nawaz and others 2007 PCr.LJ 246 wherein it has been held as under:-- Mere relationship per se is not sufficient to throw out the case of prosecution. In the same way on the basis of strained relations between the complainant and accused party, the prosecution case cannot be held concocted and fabricated."
' The afore-said view finds support from another case titled Liaqat Hussain and another v. Ulfat Khan and another PLD 2007 SC(AJ&K) 102 wherein it has been observed under:-- "As far the contention of the learned counsel for the convict-appellant is concerned that the witnesses were closely related to deceased, therefore, no reliance could be placed on them, it has no substance for the reason that it is well-settled principle of law that mere relationship of witnesses is no ground for discarding the evidence unless and until the enmity with the accused person is established."
In the instant case, as stated earlier, no enmity was suggested to Khalid Raza when he appeared as a witness. Even in the statement of accused under section 342, Cr.P.C., it was not deposed that the witnesses were inimical towards him. The manner of occurrence, as stated by Khalid Raza, was also not disputed during the cross-examination. There is no cross- examination on the vital points regarding infliction of injuries with the pistol etc. As the evidence of other witnesses Sikandar Hayat and Muhammad Naseer is concerned, they E were also not seriously cross-examined by the defence. As said earlier, no enmity was suggested to any witness, therefore, the evidence of aforesaid witnesses could not be discarded simply on the ground that they were relatives of deceased.
22. It is to be noted that the appellant ran away from the place of occurrence after the commission of murder of Haider Nosherwan. His thirst could not be quenched and he was bent upon the murder of the father of deceased. He came in the street near the house of complainant and opened firing with the pistol on him, which hit on his ankle, therefore, the appellant was not an ordinary person, but it can safely be F said that he was a desperate and hardened criminal.
23. The pistol snatched by complainant from the appellant was recovered in presence of Shehzad and Muhammad Munir, P.Ws. 10 and 11. Shehzad appeared before the trial Court on 19-3-1999 and proved the recovery of pistol. He deposed that the accused is known to him, whose name is Tahir Aziz. He had murdered Haider Nosherwan and after commission of murder, he absconded. On the Chehlum of Nosherwan. Peer Sahib Daiwal Sharif also came for participating in Chehlum. Many people congregated there. At 10-30 p.m. They were passing through the street. The accused came there and after seeing the complainant, opened the fire on him with the pistol. The bullet hit on the right ankle of complainant, upon which he snatched pistol from him and threw it in the street and caught the appellant. The police came on the place of occurrence. He handed over the pistol to police. During the cross-examination, this portion of his statement that the pistol was snatched by complainant and thrown in the street, was not challenged, therefore, it shall be deemed to have been admitted by the appellant.
24. Dr. Ch. Tariq, who conducted the post-mortem of deceased, also appeared as a witness. He stated before the Court that there were five injuries on the dead-body of Haider Nosherwan.
According to him injury No, 1, inflicted on the left side of chest, was the cause of death. He further stated that injury No, 2 was entrance wound rather he corroborated the version narrated by the complainant. The version of complainant finds full corroboration from the postmortem report and the statement of doctor. According to the eye-witnesses, the deceased died due to fire-arm injuries inflicted by the appellant, while the post-mortem report also contains that the deceased received bullet injury No, 1 which damaged left lung, pericardium and heart with massive haemorrhage resulting into complete loss of cardiac functions and death. Therefore, the version of the prosecution that the deceased died with the bullet injuries finds corroboration from the post- mortem report and the statement of doctor.
25. It is pertinent to note that in the instant case there are four eyewitnesses, who witnessed the occurrence and attributed the fatal injury to the appellant, who was the sole accused before the Court. There is no major contradiction among the four eye-witnesses. There is complete unison among them regarding commission offence by the appellant.
26. Now the question arises whether the evidence of these four eyewitnesses finds corroboration from any other evidence? As far the corroboration is concerned, it does not mean that the corroboration should be from an dependent witness, but anything in the circumstances satisfying the Court that each interested witness has spoken truth sufficient for corroboration. It is not necessary that the corroborative evidence should also be of same probative force. The corroboration can be from any circumstance satisfying the Court that the eye-witnesses have spoken truth. This view finds support from a case reported as Liaqat Hussain and another v. Ulfat Khan and another PLD 2007 SC(AJ&K) 102 wherein it has been observed as under:-- "Now the next question emerges whether the evidence of eyewitnesses is corroborated by any evidence. As far as the corroboration is concerned, it does not mean that the corroboration should be from an independent witness but anything in the circumstances which tends to satisfy the Court that each interested witness has spoken truth. The corroboration need not necessarily be of the same probative force. The corroboration can be from any circumstance satisfying the Court."
27. In the instant case, as stated in the earlier part of this judgment that the four eye-witnesses have no enmity with the appellant and they are equally related to both the parties. There is nothing on the record that due to enmity with the appellant, the witnesses deposed against him. The version narrated by the eye-witnesses finds corroboration from the post-mortem report, which clearly contains that the deceased died due to bullet injuries. It further finds corroboration from the statement of doctor. It is also to be noted that the pistol was recovered from the appellant. The bullets were fired from the pistol and the deceased died due to injuries of bullets.
28. As far as the witnesses of recovery are concerned, they have no enmity with the appellant to falsely implicate him in the instant case. No enmity was suggested to the witnesses when they appeared for evidence.
' Even the convict-appellant in his statement recorded under section 342, Cr.P.C. Did not attribute any enmity of the witnesses of recovery memo. In the instant case the evidence of eye-witnesses finds corroboration from (i) the evidence of recovery of pistol, (ii) the post-mortem report, and (iii) the evidence of doctor. The prosecution has proved its case beyond any doubt.
29. Now the next question arises whether the punishment of death sentence has rightly been awarded to the appellant or not? As the appellant is concerned, he was not an ordinary person.
First he murdered Haider Nosherwan, son of complainant, but despite murdering him he L was not satisfied and again came in the village on the Chehlum of deceased and fired with pistol on Muhammad Sharif, father of deceased, to kill him. It clearly shows that he is not an ordinary person, thus he is not entitled to any leniency. It is well-settled principle of law that where a case under section 302, A.P.C. Is proved against the accused beyond reasonable doubt, then the normal penalty of death is required and in such case leniency should not be shown, except where strong mitigating circumstances for lesser sentence are available. Where the prosecution has established the guilt of accused under section 302 through satisfactory and reliable evidence, then the penalty of death has to be awarded. The basic object of punishment in civilized society is to create deterrence among the citizens so that no one should dare to commit the slay of any person. The sentence of death shall create a deterrence in the society due to which no other person shall dare to commit the offence of murder. If in any proved case lenient view is taken then peace, tranquility and harmony of society will be jeopardized and vandalism shall prevail in the society.
30. The nub of above discussion is that finding no force in this appeal it is hereby dismissed.