1. ' IFTIKHAR HUSSAIN BUTT, J.---As both the appeals and a reference relate to the same incident and the judgment; therefore, these are being consolidated and disposed off by this single judgment.
2. ' The precise facts forming the background of the instant appeals and reference are that on 10-7- 1995 Mirza Shaukat Hayat Khan A.S.-I. (P.W. 21) was on perambulation when he received an information about the occurrence, thereupon he went to Civil Hospital Palandri whereby Shahpal Akhtar, complainant, submitted a written report alleging therein that complainant's cousin Mst.
3. Shesham Jan was married to Muhammad Hayat, convict-appellant. The relations between the spouses were strained therefore, Muhammad Hayat, convict-appellant, called the complainant at his residence to settle the dispute between them thereupon he along with Muhammad Hussain, Gull Hussain, Pervaiz, Ashfaq, Is'haq, Tariq Khan and Haji Lal went there. During the discussion at about 3-00 p.m. Hayat Khan used some filthy and nasty words against his wife due to which an altercation took place between him and Gull Hussain. Muhammad Akram, Mazhar and Arshad were already sitting in the adjacent house of Muhammad Akram in a pre-planned manner. After the altercation, Hayat Khan while muttering went to the house of Muhammad Akram. After sometime, Muhammad Akram and Haya Khan armed with .12-bore guns while Mazhar Hussain with pickaxe and Arshad with stick launched an attack upon them. Firstly, Muhammad Akram, convict- appellant, fired a shot which hit Gull Hussain at his left shoulder and chest while the pellets also hit Ashfaq at his face, nose, throat and chest. On making hue and cry, ladies of the vicinity also arrived there. When the complainant and Muhammad Hussain tried to bring Gull Hussain out, in the ,meantime, Hayat Khan, convict-appellant, fired a shot with .12-bore gun, whin hit Muhammad Hussain at his right leg. Mazhar, Arshad and Mst. Kalu Bibi started beating him with sticks and pickaxe. Thereafter, when complainant tried to take Muhammad Hussain away from the spot, Muhammad Akram fired with .12-bore gun, which hit Muhammad Hussain at his back and at right hand of the complainant. He left Muhammad Hussain there. Meanwhile, Hayat Khan, convict- appellant, fired third shot, . Which landed on right leg of Muhammad Hussain, who died spontaneously. The complainant further alleged that all the accused-persons in furtherance of their common object launched a murderous attack upon them, killed Muhammad Hussain and severely injured Gull Hussain and Ashfaq Khan. The occurrence was witnessed by complainant's companions and women of the locality.
4. ' On receiving aforesaid report, he prepared injury forms of Shahpal Akhtar, Gull Hussain and Muhammad Ashfaq Exh.PV, Exh.PN and Exh.P.W. And sent a Marasala to the Police Station Sudhnoti where a case under sections 5/15,1FL read with section 307/34, APC was registered on 10-7-1995 at 5-30 p.m.
5. ' After registration of the case, Gulfaraz Khan S.-I./S.H.O. (P.W.23) went at the spot and prepared inquest report (not exhibited). He also took into possession the blood-stained earth from the place of occurrence vide recovery memo Exh.PE and 3 empties of .12 bore gun vide recovery memo Exh.PF in presence of Gull Hussain (P.W.2) and Muhammad Akhtar (P.W.9). He further recovered a .12 bore gun on the pointation of Muhammad Hayat Khan accused vide recovery memo Exh.PB in presence of above mentioned witnesses. On the same day, he obtained medical examination report of Gull Hussain Exh.PN.
6. ' On 11-7-1995, he got prepared site plan Exh.PR by Fazl .Hussain Patwari (P.W.18). He took into possession a .12 bore gun at the instance of Muhammad Akram accused vide recovery memo Exh.PC witnessed by Gull Hussain (P.W.2) and Muhammad Akhtar (P.W.9). He also took into possession a license of .12 bore gun from Mst. Liaquat Jan vide recovery memo Exh.PD in presence of aforementioned witnesses.
7. ' On the same day, Iftikhar Ahmad A...S.-I. Police (P.W.22) took into possession the blood-stained clothing of the deceased vide recovery. Memo Exh.PY in presence of Khalid Shah Constable No,1110 (P.W.14) and Mir Akber 'Shah, Constable No,1100 (P.W.15).
8. ' On 13-7-1995, Gulfaraz Khan (P.W.23) took into possession a stick at the instance of Mst. Kalu Begum accused vide recovery memo Exh.PG in presence of Muhammad Farooq (P.W.11) and Willayat Hussain (P.W.12).
9. ' On 18-7-1995, he took into possession a pickaxe on the pointation of Mazhar Hussain accused vide recovery memo Exh.PG witnessed by Willayat Hussain (P.W.12) and Muhammad Azad Khan (P.W.13).
10. On the same day, he also took into possession clothing of Ashfaq Khan and Gull Hussain produced by Shahpal Akhtar, complainant, vide recovery memos Exh. PH and Exh. PI in presence of above mentioned witnesses.
11. ' On 20-7-1995, Gulfaraz Khan S.-I./S.H.O. (P.W.23) recovered a stick on the pointation of Arshad Mahmood vide recovery memo Exh.PK witnessed by. Shahpal Akhtar (P.W.1) and Willayat Hussain (P.W.12). He also obtained medical examination reports of Shahpal Akhtar, complainant Exh. PM, Gull Hussain (P.W.2) Exh.PN and Muhammad Ashfaq (P.W. 3) Exh. PO prepared by Dr. Muhammad Ashfaq CMO Civil Hospital Palandri (P.W.19).
12. ' The injury form of 'Muhammad Hussain .Deceased (not exhibited) was prepared by Gulfaraz Khan S.-I./S.H.O. (P.W.23) whereby the postmortem of the dead body of Muhammad Hussain deceased was conducted by Dr. Muhammad1Ashfaq CMO Civil Hospital Palandri (P.W.19) on 11-7-1995.
13. According to postmortem report Exh.PV injury No,1 damage the Neuro Vascular bundle in the popliteal fossa resulting in massive haemorrhage leading to hypo volaemic shock of death. The weapon used during the occurrence was a firearm.
14. ' It was also reported by Chemical Examiner that clay and clothes Shalwar, Qameez and Saluka were found stained with blood vide its report Exh.PX dated 20-7-1995.
15. ' It was reported by Forensic Science Laboratory Lahore Exh.PZ dated 1-1-1996 that the crime empties were found to be fired from .12 bore guns recovered from Muhammad Hayat Khan and Muhammad Akram accused-persons.
16. ' After completion of the investigation, all the accused were sent to face trial before District Criminal Court Palandri on 31-7-1995. The charge was framed against the accused-persons on 27-8-1995 'but they denied the guilt and claimed the trial.
17. ' In support of its case, the prosecution produced Shahpal Akhtar (P.W.1), Gull Hussain (P.W.2), Pervaiz (P.W.4), Mst. Shesham Jan (P.W.8), Muhammad Akhtar (P.W.9), Gull Hussain son of Abdul Aziz (P.W.10), Muhammad Farooq (P. W.11), Willayat Hussain (P.W.12), Muhammad Azad Khan (P.W.13), Khalid Hussain Shah Constable Police No,1110 (P.W.14), Abdul Rasheed DFC No,1277 (P.W.16), Muhammad Rasheed 'Moharrar Head Constable Police No,1015 (P.W..17), FazI Hussain Patwari (P.W.18), Dr. Muhammad Ashfaq CMO (P.W.19), Mirza Shaukat A.S.-I. Police (P.W.21), Iftikhar Ahmad ASI Police (P.W.22) and Gulfaraz Khan SI/SHO (P.W.23) whereas Ashfaq Khan (P.W.3), Ishaq (P.W.5), Tariq (P.W.6), Lal Khan (P.W.7), Mir Akbar Shah Constable Police No,1100 (P.W.15) and Raja Khurshid Khan DSP (P.W.20) were abandoned by the prosecution.
18. ' The salient features of the prosecution evidence and other incrimination circumstances appearing against the accused-respondents were put to the accused-persons for their explanation as required by section 342, Cr.P.C. But they refuted the prosecution evidence and claimed to be innocent. Muhammad Akram and Muhammad Hayat Khan accused persons pleaded that the complainant party launched a murderous attack upon them wherein both of them were verely injured and in the defence they fired shots whereby Muhammad Hussain died and other P. Ws. Were injured. According to Muhammad Hayat Khan, the complainant' party wanted to obtain divorce of Mst. Shesham Jan from him but on his refusal Muhammad Hussain severely injured him thereupon he fired in the air and the complainant party fled away but later on they again launched an attack upon them, thereupon he fired a second shot in order to save the life of his brother because Muhammad Hussain deceased wanted to stab his brother. Muhammad Akram also refuted the prosecution evidence and took the defense that he was empty-handed and when the complainant party launched an attack upon him, his brother Muhammad Hayat in order to save his life fired a shot. He and Muhammad Hayat were severely injured by the complainant party. The other accused-persons totally refuted their presence at the spot.
19. ' Dr. Rashad Yagoob Civil Medical Officer District Hospital Palandri appeared as defence witness and deposed that he had prepared the injury reports of Muhammad Hayat Khan and Muhammad Akram Exh.DM and Exh.DN.
20. ' After conclusion of the trial, Muhammad Hayat Khan and Muhammad Akram Khan were convicted and sentenced to death under section 5, IPL along with imprisonment of 5 months and 25 days each under section 13/20/65,A.A. They were further sentenced to 2 years under section 307, APC along with "Hakumat-eAdl" Rs,10,000 each under section 15,IPL for, causing injuries to Gull Hussain and Shahpal Akhtar with the intention to kill them. The benefit of section 382-B, Cr.P.C. Was also extended in their favour. Mazhar Hussain and Arshad Mahmood accused were acquitted of the charge vide its judgment dated 1-7-2003. The aforesaid judgment was assailed before single Bench of this Court by both the parties which was disposed off by our learned brother Mr. Justice Syed Hussain Mazhar Kaleem vide his judgment dated 31-12-2008, which was challenged before the Supreme Court of AJ&K whereby the Apex Court while setting aside the aforementioned judgment remanded the case to this Court with the direction that instant appeal shall be heard and disposed off by a Division Bench in the light of judgment of Apex Court titled Jawad Ayub v.
21. Sadaqat Hussain (Criminal Appeal No,31 of 2005 decided on 28-9-2010).
22. ' Following the aforesaid /Erection of Apex Court of AJ&K, the appeals along with reference have been heard by Division Bench and being disposed of.
23. ' Thus, the judgment of the trial Court which' has been challenged through two separate appeals, one filed by complainant for awarding sentence to acquitted accused-respondent Arshad Mahmood and the other filed by convict-appellants for their acquittal while a reference has also been made by District Criminal Court Sudhnoti for confirmation of the death sentence, are the subject-matter of this judgment.
24. ' Sardar Rafique Mahmood Khan, Advocate, the learned counsel for the defense vigorously argued that a false case of murder has been registered against the accused-persons. The learned counsel further contended that in fact the deceased and the complainant party Who were eight in number launched a murderous attack upon the accused party and severely injured them. The learned counsel laid great stress upon the point that for the aforesaid reason, the prosecution suppressed the injuries of the convict-appellants and also did not explain the same during the trial. The learned counsel maintained that the complainant party arrived at the house of Muhammad Hayat, appellant, to obtain divorce of his wife Mst. Shesham Jan (P.W.8) forcibly, a cousin of the complainant and upon his refusal, he was alleged as a shameless person and Gull Hussain (P.W.2) also launched an attack upon him and when the complainant party tried to do away with the life of his brother Muhammad Akram and Muhammad Hussain attacked upon him with a knife and others with the sticks thereupon Muhammad Hayat came to his rescue and fired a shot in his defence. The learned Counsel also agitated that all P.Ws. Are closely related to the complainant and the deceased. Shahpal Akhtar, the complainant (P.W.1) and Gull Hussain (P.W.2) are real brothers of the deceased. Muhammad Farooq (P. W.11) is also, his real cousin. Pervaiz (P.W.4) is not an impartial witness because he accompanied the complainant party to obtain divorce of Mst.
25. Shesham Jan from Hayat Khan accused whereas Ashfaq Khan an injured (P.W.3) who was an independent witness, was withheld by the prosecution which shows that if he would have been appeared, he would have stated the real story of the occurrence. The learned Counsel pointed out that according to Gull Hussain (P.W.2), the P.Ws. Were animus to Arshad and other accused- persons; ,therefore, the deposition of all the eyewitnesses who are not only closely related to the complainant party but also animus to them, .Is not reliable. The learned Counsel maintained that the occurrence took place in the house of Hayat Khan accused and a specific defence plea has been taken during the examination of the accused-persons recorded under section 342, Cr.P C that at the time of occurrence Hayat Khan was empty-handed whereas Muhammad Hussain deceased initiated the aggression and fired upon Hayat Khan and inflicted injuries to Muhammad Akram with a knife, resultantly, both the convict-appellants Hayat Khan and Muhammad Akram sustained grievous injuries but they were not medically examined- by 1.0. And thereafter on the demand of the defense they were medically examined. The learned Counsel pressed into service the submission that the injury forms of the convict-appellants Exh.DM and Exh.DN show that Muhammad Akram appellant sustained four injuries whereas Muhammad Hayat Khan sustained two injuries and the above mentioned injuries were not only suppressed during the investigation but also not explained at the trial. The learned counsel zealously argued that it is not a case of any intentional murder and no premeditation or preconcert has been proved by the prosecution but the trial court totally .Ignored the defence plea and has drawn wrong conclusion. The learned counsel further maintained that the story of 'prosecution is unnatural and motive has also not been proved. The learned counsel also stressed upon the point that the other accused-persons Arshad Mahmood and Mazhar Hussain were also acquitted of the charge which shows that the evidence of the P.Ws. Was also not worthy of any credence against convict-appellants, The learned counsel pointed out that an iota of evidence is not available on the record against the acquitted respondents and medical evidence also does not support the version of the prosecution. The learned counsel finally submitted that the convict-appellants are detained behind the bars for the last about 17 years and keeping in view the circumstances of the case, they are entitled to be acquitted of the charge otherwise the sentence already undergone is sufficient to meet the ends of justice. He further prayed that the impugned judgment may be maintained to, the extent of Arshad Mahmood accused-respondent because Mazhar Hussain, another accused-respondent has died during the pendency of instant appeal. In support of his contentions, the learned counsel cited the following authorities:--
(1) PLD 1977 SC 15, (2) PLD 1979 SC AJ&K 56 & 88, (3) PLD 1980 FSC 1, (4) 1994 SCR 275, (5) 1996 SCR 95, (6)1997 PCr.LJ 1539, (7) 2001 PCr.LJ 225 and (8) 2007 SCR 332.
26. ' On the contrary, Shaukat Aziz the learned Addl. A.G. Appearing on behalf of the State controverted the arguments raised by the learned Counsel for the defense and submitted that the prosecution has amply proved its case by producing injured eyewitnesses and sufficient corroboratory evidence; therefore, the impugned judgment to the extent of convict-appellants may be' maintained and Arshad Mahmood may also be convicted and sentenced under law. The learned State Counsel frankly conceded that Mazhar Hussain accused-respondent has died during the pendency of the present appeal.
27. ' Sardar Abdul. Hameed Khan, Advocate, the learned counsel for the Complainant, who was not present at the time of hearing of arguments, has filed his written arguments in compliance with the Court order wherein he submitted that in the present case F.I.R was proniptly lodged, the accused were named, specific role of each accused was attributed and all P.Ws were nominated therein. He further contended that two out of three injured P.Ws were produced before the trial Court who fully supported the prosecution story. The recovery of crime weapons from all accused-persons was proved. The report of postmortem and' medical examination reports of injured P.Ws. Were duly proved. The learned counsel further pointed out that the -report of Firearm Expert, license of gun and site plan further support the prosecution version. According to the learned counsel, the presence of the accused-persons is admitted by the defence and it is further admitted that they killed the deceased by firing shots and injured the P.Ws. The learned counsel agitated that it is not necessary for the prosecution to allege and prove the motive. Similarly, it is also the prerogative of the prosecution to produce or give up any P.W. The learned counsel further submitted that the main story of the prosecution has been proved beyond reasonable doubt and mere injuries on the person of the accused do not cover their case as one of self-defence, rather the statement of Hayat and others recorded, under section 342,Cr.P.C. Is clear proof against them. The learned counsel finally prayed that the appeal of the convicts Muhammad Hayat and Muhammad Akram may be dismissed and appeal filed by the complainant against Arshad Mahmood' may be accepted and he may also be awarded legal punishment and the death sentence awarded to the convict-appellants may be confirmed. In support of his arguments, the learned counsel referred to us the following authorities:-
(1) 1992 SCR 249, (2) 1995 PCr.LJ SC (AJ&K) 789, (3) 1097 PCr.LJ 1539 and (4)'2061 PCr.LJ 52.
28. ' We have given our due' consideration to the arguments addressed at Bar along with the written arguments filed by the learned counsel for the complainant and also perused the record and the case law with care.
29. At the very outset, it will be relevant to point out that the time, date and place of occurrence, the presence of the accused party and the eye-witnesses is admitted on the part of the defence. The only dispute between the parties is the manner of occurrence. According to the prosecution, they went to .The house of Hayat Khan, accused, to resolve the dispute between him and his wife Mst.Shesham Jan (P.W.8) where the accused party launched an attack upon them and murdered Muhammad Hussain and injured other P.Ws. By firing shots with lethal weapons. On the other hand, the claim of the defense emerging during the cross-examination, the suggestion put to P. Ws and particularly during their examinations recorded under section 342, Cr.P.C. Is that eight persons arrived at the house of Muhammad Hayat Khan to forcibly obtain divorce of his wife Mst. Shesham Jan from him and upon his refusal, Muhammad Hussain, deceased and his companions initiated the attack with a knife and sticks, thereupon in order to save their lives the convict-appellant Muhammad Hayat fired shots in defence. When both the versions of the prosecution and the defence are examined in juxtaposition, it appears that the occurrence took place in somewhat different manner, as alleged by the prosecution. It also reveals from the perusal of prosecution evidence that before the occurrence an altercation took place between the parties. Gull Hussain (P.W.2) deposed that Hayat Khan used filthy language against his wife, thereupon hot words were exchanged between him and Hayat Khan accused. Similarly, Pervaiz Ahmad (P.W.4) also stated that Gull Hussain (P.W.2) abused Hayat Khan that you are a shameless person and hot words were exchanged between them. Mst. Shesham Jan (P.W.8) testified that when hits husband Hayat Khan used abusive language against her, Gull Hussain (P.W.2) flared up and launched an attack upon Hayat Khan accused, which shows that occurrence took place at a spur of moment due to grave and, sudden provocation and it was neither a pre-planned nor a pre-arranged assault because in presence of his wife when he was called shameless, he flared up and lost the control upon his passion.
30. ' The perusal of injury forms. Exh.DM and Exh.DN of Muhammad Akram and Muhammad Hayat Khan convict-appellants reveal that they sustained simple injuries because they were examined on 18- 7-1995, after 8 days of the occurrence on the request of the defense. Muhammad Akram accused sustained four injuries over right lower chest wedge shaped, over back of chest inter scapular region, two wounds with scab formation over right shoulder and two wounds with scab formation one over dorsum of right wrist joint and other over left knee. Similarly Muhammad Hayat Khan sustained two injuries one below right lower eyelash other over right shin. As the wounds were healing with scab formation; therefore, opinion regarding the kind of weapon could not be given.
31. ' Now the question emerges as to whether the convict-appellants were entitled to use so much force by firing with lethal weapons in order to save their lives while according to them they were attacked with knife and sticks. It has been opined by Apex Court of AJ&K in a case titled Muhammad Khalil v. The State (1992 SCR 249) that non-explanation of the injury on the person of the accused-appellant is not sufficient to hold that the accused acted in self-defense; however, it was further held that it depends upon the circumstances of each case i,e, nature of injury, weapon used and other attending circumstances of the case which either appear in the prosecution case or brought on the record by an accused in the defense. As stated earlier, according to defence, the complainant party attacked with knife and sticks; therefore, in reply the convict-appellants were not authorized to use lethal weapons for their defence. Thus, we don't find any substance in the argument of the learned counsel for the convict-appellants that they acted in their self-defence because the circumstances appearing in the prosecution case do not support such plea. Thus, a detailed scrutiny of the ocular version shows that Muhammad Hussain was done to death by the firing of Muhammad Hayat Khan and Muhammad Akram Khan convict-appellants, who hit Muhammad Hussain deceased and also severely caused injuries to Shahpal Akhter (P.W.1), Gull Hussain (P.W.2) and Muhammad Ashfaq (P .W .3).
32. ' The learned counsel for the convict-appellants zealously argued the Shahpal Akhter (P..W.1) and Gull Hussain (P.W.2) are real brothers of the deceased whereas Shesham Jan (P.W.8) and Muhammad Farooq (P.W.11) are their real cousins; therefore, the evidence of related and interested witnesses cannot be relied upon. It is an admitted position that the eye-witnesses are closely related to the deceased but at the same time it has not been proved on the record that they are animus to the convict-appellants or nurse any grudge against them to falsely implicate or substitute them in the commission of heinous offence like murder, particularly when they admitted that they fired shots with lethal weapons in their defense; therefore, the evidence of eyewitnesses cannot be brushed aside on this score.
33. ' In this view of the matter, there is hardly any justification to hold that the eyewitnesses are interested one. Our aforesaid view finds support from the following cases:--
(i) 2007 PCr.LJ 246, (ii) PLD 2007 SC (AJ&K) 102 and (iii) 2008 SCR 71.
34. ' As far as the question of Arshad accused is concerned, it has been established on the record that the P. Ws. And the accused nurse some grudge and rancor against him.
35. ' We cannot subscribe to the view of the learned counsel for the convict-appellants that the ocular version is not trustworthy because it has not been believed to the extent of, co-accused. It is by now settled position of criminal jurisprudence that a criminal Court has to sift the grain of truth from the chaff of falsehood; therefore, the deposition of prosecution witnesses can be relied upon against some accused while rejected against other. In this regard, we are fortified by the following authorities:--
(i) 2007 PCr.LJ 1757 and (ii)2001 PCr.LJ 524 'Coming to the instant case, besides eye-witnesses' account, it is amply supported by strong corroboratory and confirmatory evidence. It may be observed here that if the ocular version is reliable and trustworthy, then conviction can be based on, such type of deposition of eyewitnesses but the Court always looks for corroboration as a rule of caution to exclude the implication of an innocent person. The supportive evidence can be produced by any circumstance, which satisfies the conscious of the Court that witness is worthy of credence. Our aforesaid view also finds support from a case titled as Zahir Hussain Shah Shahnawaz Khan and 3 others 2007 PCr.LJ 1757.
36. ' The same view was further affirmed in a case tilted Muhammad Tahir Aziz v. The State and another (2009 SCR 71) herein the following dogma was enunciated: -- "Now the question arises whether the evidence of these four eye-witnesses finds corroboration from any other evidence? As far the corroboration is concerned, it does not mean that the corroboration should be from an independent witness, but anything in the circumstance satisfying the Court that each interested witness has spoken truth is 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."
37. ' In the case in hand, Dr. Mohammad Ashfaq- (P.W.19) testified the postmortem report Exh.PV, who found bullet injury exactly on the same part of the body of deceased at which the eye-witnesses deposed. According to him, the firearm injury' is cause of death of deceased, who died spontaneously.
38. Similarly, the medial examination reports of Shahpal Akhter Exh.PM, Haji Gull Hussain Exh.PN and Muhammad Ashfaq Exh.P0 fully support the statements of eye-witnesses. Likewise, the injury forms, of eye-witnesses, blood-stained clothing of the deceased and' the eye-witnesses, the recovery of weapons of offence at the instance of accused persons and the reports of Forensic Science Laboratory and the Chemical Examiner are also in nature of confirmatory evidence, which further support the statements of eyewitnesses.
39. ' The contention of the learned counsel for the convict-appellants appears to be well-founded which requires serious consideration that the prosecution could not prove motive of the murder; therefore, the convict-appellants may be acquitted of the charge. Although it is not necessary for the prosecution to prove motive for awarding capital punishment; however, if the motive is not proved, the death sentence should not be awarded. It was observed in Muhammad Khurshid Khan's case PLD 2007 SC (AJ&K) 27 that "The motive though not sine qua non for bringing the offence of murder at home but it has importance regarding the quantum of sentence".
40. ' As far as the case of Arshad Mahmood, accused, is concerned, sufficient prosecution evidence is not available on the record to implicate him with the commission of offence. The medical evidence also does not support the prosecution version. Furthermore, according to the deposition of Gull Hussain, hostility was prevailing between the deceased and the acquitted respondent. The acquitted respondent was also not member of meeting (Jirga). The mere recovery of stick from the acquitted respondent as well as statements of inimical witnesses is not sufficient to convict him; thus, the prosecution evidence against him was not cogent and reliable to rely upon without corroboration of any independent source. Therefore, the trial Court did not commit any illegality while extending him the benefit of doubt.
41. ' A critical survey of above stated evidence shows that the prosecution did not lead evidence about hatching a conspiracy against accused-persons. Similarly, no direct evidence has been brought on record showing strained relations between the spouses. If for the sake of argument there was no dispute between them, the parents or real brothers of Mst. Shesham Jan could be the best persons to resolve the issue but strangely they were neither members of 'Jirga' nor were produced as prosecution witnesses, even the statement of Mst. Shesham Jan is very weak in this respect and particularly according to Shahpal Akhter, complainant, till the day of occurrence the spouses were living together and leading happy life. In such state of affairs, the story of prosecution needs serious consideration. If the offence was premeditated and pre-arranged and the convict- appellants wanted to commit offence of murder, then there was no need to call meeting of eight persons and commit offence in their presence careful perusal of the evidence shows that no evidence with regard to preconcert or premeditation was produced on the record and even the peculiar facts and circumstances of the case do not indicate that any conspiracy was hatched by the accused-persons to commit the offence K in furtherance of their common intention. As stated earlier, during the discussion when Muhammad Hayat convict-appellant used indecent and filthy language against his wife, an altercation took place and Gull Mohammad also attacked upon Muhammad Hayat Khan, as stated by Mst. Shesham Jan P.W. Thereupon, Muhammad Hayat Khan left the meeting and went out. It clearly 'shows that the occurrence took place at the spur of moment and resulted in murder. Thus, it is established that due to tense situation during meeting (Jirga) the occurrence took place and the convict-appellants used lethal weapons, repeated fires and murdered Muhammad Hussain, deceased, when he was trying to escape from the place of occurrence and both of the convict-appellants also severely caused injuries to P. Ws.
42. ' Now we advert to an alternate argument of the learned counsel for the convict-appellants with regard to quantum of sentence. In this regard, the learned Counsel cited numerous authorities as follows:-- ' In Muhammad Rasab Khan's case PLA 1979 SC AJ&K 56) it has been laid down that when a case of sudden fight that ensued after the, exchange of hot words between the parties is established, the possibility cannot be ruled out that deceased might have been first to inflict blows then benefit of exception (IV) to section 300' is available to an accused.
43. ' In Muhammad Riaz etceteras' case (PLA 1980 FSC 1) it has been observed by the Federal Shariat Court at page 37 of the report as under:- "It is thus clear that exceeding the right of self-defence if in good faith would not amount to murder but if it is exercised despite knowledge that no case of self-defence is made out it would amount to murder. The Penal Code and Surma are; therefore, unanimous on the point."
44. ' In Ghulam Sarwar's case (1979 SC AJ&K 88) accused young man of 25 years after receiving abuses of being a loafer, gounda and vagrant shooting, deceased dead in heat of moment within a few -minutes having had no time to cool, down. No previous enmity or bad blood was present between the parties and the parties even were closely related, it was held by Apex Court of AJ&K that the accused acted on grave and sudden provocation. The penalty of death was reduced to one of transportation of life.
45. ' In Hassan Mohanimad's case (1996 SCR 95) the occurrence took place in September, 1977 somehow 15 years had passed when the case was near conclusion before Shariat Court which works out about 18 years and accused also remained in confinement for 7 years during that period.
46. The accused also sustained simple injuries but the Apex Court considered it a case for awarding lesser sentence.
47. ' In Muhammad Mumtaz Hussain's case 2001 PCr.LJ 225 it has been opined that if murder committed is not premeditated and motive is also shrouded in mystery, the capital punishment is not awarded especially so when the offender is a teenager.
48. ' In Shabbir Ahmad's case 1997 PCr.LJ 1539 it has been laid down that although the injuries on the person of the accused have not been found to have any bearing on the question of the guilt of convict. However, the injuries in the circumstances of the case do have bearing on the question of sentence. In this case, injuries were not suppressed by the prosecution but could not specifically be explained as to how the injuries were caused; therefore, the extreme penalty of death was altered into sentence of life imprisonment.
49. ' The learned counsel for the complainant has also cited the same authority.
50. ' In Qadeer Hussain's case (1995 PCr.LJ SC AJ&K 789) referred to by the learned counsel for the complainant, the accused having suffered agony of protracted trial for about 13 years remaining in judicial lockup throughout, his sentence of 25 years' R.I. Under section 302, APC was reduced to life imprisonment in circumstances.
51. A minute study of above stated authorities leads to a resistible conclusion that when the offence is not premeditated and it occurs in spur of moment on sudden provocation in heat of passion and the motive is also not proved and the convict-appellants are behind the bars for about 17 years, then it will not be in the interest of justice to award capital punishment.
52. ' On the above premises of reasoning and after taking into consideration the peculiar facts and overall circumstances of the case, the conviction of Muhammad Hayat Khan and Mohammad Akram Khan, convict-appellants, awarded in offences under sections 5&15/IPL, 307, APC and 13/20/65,AA is altered into the sentence of imprisonment already undergone by them, as the same would meet the ends of justice. The learned trial Court failed to comply with the mandatory provision of section 544-A, Cr.P.C. Therefore, we direct the convict-appellants to pay compensation amounting Rs,50,000 each, to the heirs of the deceased and Rs,10,000 each to injured P.Ws. Shahpal Akhter, Gull Hussain and Ashfaq. In default of realization or payment whereof; the convict- appellants would suffer simple imprisonment for six months.
53. The extenuating circumstances to mitigate the enormity of crime have also been considered by us which are as follows:--
(1) The prosecution could not prove the motive.
(2) The convict-appellants are behind the bars for about 17 years.
(3) The prosecution evidence has been disbelieved to the extent of co-accused.
(4) The occurrence took place in the house of Muhammad Hayat Khan, convict-appellant.
(5) The prosecution did not satisfactorily explain the injuries on the persons of convict-appellants.
(6) The occurrence was not premeditated or preplanned.
(7) In first round of appeal, one Hon'ble member of this Court altered the death sentence of Muhammad Akram convict-appellant into life imprisonment.
54. ' So far as the case of Arshad Mahmood, accused-respondent is concerned, the benefit of doubt was rightly extended to him by the Court below, which does not warrant any interference by this court; therefore, the impugned judgment to his extent is maintained.
55. ' Resultantly, Appeal No,72 of 2011 fails and Appeal No,71 of 2011, with the aforesaid modification in sentence, is partly accepted. The reference is answered in negative and death sentence is not confirmed. The copies of the judgment shall be annexed with the relevant files.