' RAJA SAEED AKRAM KHAN, J. The above titled appeals arise out of the judgment of the Shariat Court of Azad Jammu and Kashmir dated 28.10.2003, whereby while modifying the judgment of the District Criminal Court, Muzaffarabad, Shafqat Hussain, Sajjad Hussain and Nadeem-ul-Hassan, convicts-appellants, herein, were sentenced to two years' imprisonment, each, under Sections 337- A(ii), A.P.C. and three months' imprisonment under Section 337-F(i), A.P.C. They were also ordered to pay a sum of Rs, 70,000/- as 'Arsh' and Rs, 30,000/- as 'Daman' in equal proportion to Sher Afzal, victim of injuries. Sabir Hussain and Khadim Hussain, accused, were acquitted, Shafqat Hussain and others, convicts-appellants, have filed appeal against their conviction while Sher Afzal, complainant-appellant, has filed appeal against the acquittal , order and enhancement of sentence of the convicts. Since both the appeals arise out of the same judgment of the Shariat Court, therefore, these are being disposed of by this single judgment.
2. The precise facts giving rise to the present appeals are that a report was lodged by Sher Afzal Khan, complainant, stating therein that on 24.3.1999, he (complainant) along with his son, Nisar Hussain and daughter-in-law, Mst. Robina Bibi, was boarding on a Suzuki van at a place known as Arand Pull Road for proceeding to their respective offices. Khadim Hussain, Altaf Hussain, Sabir Hussain, Shafqat Hussain, Sajjad Hussain sons of Sher Ahmed, Nadeem son of Khadim Hussain and another son of Khadim Hussain were sitting at the Suzuki stand. Sabir Hussain was armed with 7- mm rifle, Altaf Hussain was armed with a Kalashinkov while Sabir Hussain was armed with .12 bore gun. They started firing on the complainant party. Two fire shots hit Nisar Hussain at his abdomen and thigh. Mst. Robina was also injured due to firing, lt was further stated that the accused beat the complainant with 'sotis' and stones, lt was alleged that the accused, Khadim Hussain, Altaf Hussain and Sabir Hussain forcibly snatched Rs, 7250/- from the complainant. On this report a case under Sections 324, 147, 148, 149, Azad Penal Code and Section 17 of The Offences Against Property (Enforcement of Hudood) Act, was registered at Police Station City, Muzaffarabad, against Khadim Hussain, Altaf Hussain, Sabir Hussain, Shafqat Hussain, Sajjad Hussain sons of Sher Ahmed and Nadeem-ul-Hassan son of Khadim Hussain. Later on Nisar Hussain succumbed to the injuries and Section 302, A.P.C. was added while during investigation Section 17 of The Offences Against Property (Enforcement of Hudood) Act was deleted. After necessary investigation, a challan was presented in the District Criminal Court, Muzaffarabad, against the accused persons. The District Criminal Court, after necessary trial, convicted Khadim Hussain and Sabir Hussain to life imprisonment under Section 302, A.P.C., 5 years' rigorous imprisonment, each under Section 324, A.P.C., two years' rigorous imprisonment, each, under Sections 148 and 149, A.P.C. while Shafqat, Sajjad Hussain and Nadeem-ul-Hassan were , convicted for 7 years' rigorous imprisonment, each, under Section 302, A.P.C., three years' rigorous imprisonment, each, under Section 324, A.P.C. and one years' rigorous imprisonment, each, under Sections 148 and 149, A.P.C. All the five accused were also awarded-Rs, 25,000/-, each, as fine to be paid to the injured persons. The convict-accused filed an appeal before the Shariat Court. The Shariat Court modified the judgment of the District Criminal Court and Shafqat Hussain, Sajjad Hussain, and Nadeem-ul-Hassan, convicts-appellants, herein, were sentenced to twp years under Section 337-A(ii) and 3 months' imprisonment under Section 337- F(i) as 'Tazif, each. They were also ordered tb pay a sum of Rs, 70,000/- as 'Arsh' and Rs, 30,000/- as 'Daman' in equal proportion to injured Sher Afzal Khan, complainant, while Sabir Hussain and Khadim Hussain, accused, were acquitted. These appeals are the subject of the aforesaid judgment of the Shariat Court.
3. Mr. Asghar Ali Malik appeared on behalf of Shafqat Hussain and others, convicts-appellants, and argued that the civil litigation between the parties is not disputed. The matter was settled through a 'Jirga' in which it was decided that compensation will be paid to the complainant party. At the time of occurrence, the appellants were present in the Mill and the complainant party attacked there. He referred to point No, 1 of the site plan which is at a distance of 378 feet from the Mill. He further averred that both the parties were injured but the injuries of the accused party were concealed and these were not investigated by the Investigating Officer, lt makes the case of the prosecution doubtful. He further argued that admittedly prosecution witnesses are closely related to each other, therefore, their evidence cannot be safely relied upon. He contended that the occurrence at the most may be termed as one of sudden fight which is also apparent from the injuries, received by the accused party. The accused also moved an application before the Police for lodging their counter case but that was not properly dealt with. The Suzuki van in which the complainant party was going to board was also not taken into custody. Only three crime empties were recovered from the spot but these were not sent to the Forensic Science Laboratory for analysis. He referred to the statement of Tahir Saleern, PW, who appeared in the Court and stated that all the assailants fired from their respective weapons whereas only three crime empties were recovered from the site which negates the prosecution version and makes the prosecution case doubtful. Sher Afzal, who is complainant, during recording of his statement, has not disclosed the injuries caused to Abdur Rehman, witness. The presence of all the accused at the spot has not been proved. He further referred to another portion of the statement of witness, namely, Tahir Saleern who during the course of recording the statement, did not disclose the name of Saqab Majeed, P.W. lt was further averred that it was the duty of the Investigating Officer to determine that who was aggressor. He lastly argued that the judgment of the first Appellate Court is well-^ reasoned and no interference is called for by this Court. He argued that the Shariat Court has rightly acquitted the accused, namely, Sabir Hussain and Khadim Hussain, lt is settled that once an acquittal order has been passed, the exceptional reasons are required to set aside the same. The learned counsel for the convicts-appellants placed reliance on the cases reported as Sattar Khan and another v. The State [PLD 1970 Pesh. 185], Mst. Shaukata v. The State [PLD 1985 Pesh. 163], Manzoor Masih v. The State [PLD 1995 SC 307], Muhammad Iqbal and 3 others v. The State [1992 SCMR 1517], Talib Hussain v. Tasawar Hussain etc. [NLR 1999 SD 721] and Shabhir Ahmed v. The State [1997 SCR 206],
4. Raja Muhammad Hanif Khan, Advocate, who appeared on behalf of Sher Afzal, complainant, argued that the judgment passed by the Shariat Court is perverse, arbitrary and fanciful. The place of occurrence is admitted and the participation of the accused in the occurrence is not denied which itself reflects that three persons were injured in the occurrence and one was done to death.
He argued that in the criminal law there is no concept of hypothetic analysis and inference cannot be drawn on the basis of presumptions. The manner in which the occurrence took place shows common intention of the accused who came there armed with lethal weapons in the result of which one person was done to death and three persons were injured. The presence of the eye- witnesses cannot be doubted and there was no justification to acquit the accused, Sabir Hussain and Khadim Hussain. Although the matter regarding civil litigation was decided in a Jirgah but the accused in spite of that attacked the complainant and his companions in a pre-planned manner.
The learned counsel lastly argued that the judgment passed by the Shariat Court is liable to be set aside and the judgment passed by the District Criminal Court be restored. The learned counsel relied upon the cases reported as Muhammad and others v. The State [PLD 1962 SC 450], Majid v.
The State [1971 SCMR 693}, Lalu v. The State [PLD 1959 SC (Pak.) 258], Rashid Ahmad and another v.
The State [1996 P.Cr.L.J. 314], Muhammad Hanif v. The State [PLJ 2001 SC 359], Saleern Khan v. The State [2001 P.Cr.L.J. 503] and The State v. Liaquat Hussain and others12005 MLD 1425],
5. Raja Ghazanfar Ali, Advocate-General, and Ch. Shoukat Aziz, Additional Advocate-General, while appearing on behalf of the State,, fully supported the arguments advanced by Raja Muhamnjad Hanif Khan, counsel for the complainant. They argued that no enmity has been brought on the record against the eye-witnesses. They are natural witnesses and the presence of the accused persons has been proved from the record. There was no justification for the Shariat Court to disturb the well-reasoned judgment of the District Criminal Court. They argued that in absence of any enmity or false implication of the accused, the statements of the eye-witnesses cannot be discarded merely on the ground of relationship. They further argued that it was a pre-planned and premeditated occurrence. The presence of the accused persons at the site of occurrence is established by the independent evidence. They requested for setting aside the judgment of the Shariat Court and restoration of the judgment of the Trial Court. They have relied on a case reported as Muhammad Khurshid Khan v. Muhammad Basharat [2007 SCR 1 ].
6. After hearing the learned counsel for the parties at length we have perused the relevant record with ' the assistance of the learned counsel for the parties. We have also examined the case-law cited by the counsel for the parties in detail. The learned counsel for the convicts- appellants placed reliance on the case reported as Sattar Khan and another v. The State [PLD 1970 Pesh. 185], wherein it has been observed:-- "The testimony of the two ocular witnesses intrinsically does not ring true. The houses of Mir Sahib Khan and Tajak are situated close to the scene of occurrence. Both of them' have not come forward to support the prosecution case. The probabilities that the two ocular witnesses were not present near about the scene of occurrence and had not seen the commission of the murder of the deceased by the two appellants, cannot, in the circumstances of the case, be excluded, lt will not, therefore, be safe administration of justice to rely upon the ocular testimony of the two closely related P.Ws." ' This case is of no help to the accused-appellants because it has distinguishable features and has nothing common with the case in hand, ln the referred case natural eye-witnesses present at the scene of occurrence were not cited as ' witnesses rather some other witnesses were cited while in the instant case the eye-witnesses, irrespective of the fact that they are related, have been cited as natural witnesses present at the scene of occurrence. ' ln the case titled Mst. Shaukata v. The State [PLD 1985 Pesh. 163], referred to by the learned counsel for the appellants, the prosecution evidence entirely rested upon circumstantial evidence and cumulative effect of the same ^ did not lead the Court the conclusion that the accused caused death of the deceased. This case has no relevance with the present case.
' The case reported as Manzoor Masih v. The State [PLD 1995 SC 307], relied upon by the learned counsel for the appellants was a case of sudden free fight while the present case is one of pre- planned and premeditated, therefore, this case is distinguishable and is of no help to the, accused. ' ln the case reported as Muhammad Iqbal and 3 others v. The State [1992 SGMR 1517], relied upon the leamed counsel for the appellant, it was held as under:-- ' One, the deceased had beaten the mother of the accused, they could act in exercise of her right of* private defence (it would only be deemed to have been exceeded) by application of Exception 2 to Section 300, P.P.C. The case would fall in this context under Section 304, Part I, P.P.C, and not under Section 302, P.P.C.
' Similarly, the mother of the accused if she was being manhandled, this would give the accused a cause for grave and sudden provocation and thus by application of Exception I to Section 300, P.P.C., the case would again fall under Section 304, Part I, P.P.C."
' This case is also distinguishable and has no nexus with the present case.
' In the case titled Talib Hussain v. Tasawar Hussain etc. [NLR 1999 SD 7.21], the acquittal of a murder charge recorded by the Trial Court was upheld by the Shariat Court after finding glaring defects in prosecution evidence and holding that medical evidence had falsified the evidence of eye- witnesses, lt may be observed that the medical evidence is corroboratory in nature, In the instant case when the medical evidence is read with the ocular evidence of the eye-witnesses it fully corroborates the ocular evidence and establishes the commission of offence by the accused.
Therefore the case relied upon by the learned counsel for the appellant is not helpful to the case in hand.
' Similarly in the case reported as Shabhir Ahmed v. The State [1997 SCR 206], relied upon by the learned Counsel for the accused-appellants, it was observed that the mere fact that injuries on the person of accused were not explained would not bring the case within the ambit of self- defence.
Therefore, it is not relevant to the facts of the present case.
7. While adverting to the evidence, we have minutely perused the statement of Sher Afzal, complainant and observed that his statement is in line with the facts narrated in the F.I.R. No contradiction is found in his statement. Similarly, Mst. Robina Bibi ho is widow of the deceased, also entered into the witness-box and , categorically implicated all the accused named in the F.I.R.
Further corroboration has been made by the statement of Tahir Saleern, a driver of Suzuki who is totally an independent witness. The said witness has narrated the whole story and supported the other witnesses. The presence of all the witnesses at the spot cannot be disbelieved when three eye-witnesses are injured and two of them are independent who have no relationship with any of the parties. On the basis of mere relationship the evidence of eye-witnesses cannot be discarded when the evidence is , duly corroborated by the statement of doctor, and reports of forensic science expert and chemical examiners. We are fortified in our view in a case reported as Mehrban v. The State [PLD 1978 SC (AJ&K) 96], wherein it has been observed as under:-- "The mere fact that a witness is related to the deceased, is not per se enough to discredit the witness if it is found that in the circumstances of the case such a witness's presence and witnessing the occurrence was natural. Similarly, an eye-witness's evidence cannot be rejected outright merely because such a witness belongs to one party or the other involved in a factional dispute; if otherwise such a witness establishes his veracity. Of course these factors may put the Court on alert for close scrutiny of the evidence of such witnesses, but this by itself is not sufficient to discard their evidence if otherwise they are found to be witnesses of truth."
' In another case reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others (2001 SGR 240), this Court observed as under:-- "lt may be observed that except Abdur Rashid, complainant, it has not been shown that the other witnesses, namely, Muhammad Siddique and Walayat Khan, were related to the deceased, irrespective of the fact at the mere relationship is no ground for discarding the evidence of a witness Even if it is assumed that there was any such remote relationship, how the said witnesses would become 'interested' witnesses. An 'interested' witness is one who falsely implicates an innocent person with the commission of offence with ulterior motive. Thus, a related witness would be interested to secure the punishment of the actual culprit and not falsely implicate a person in place of the real perpetrator of a crime." ' ln a case titled Muhammad Abbas alias Abbasio v. The State [2008 SCMR 1527], the Supreme Court of Pakistan held:-- .
"Of course both these P.Ws, are related to the deceased but it is a settled proposition of law that mere relationship would not discredit a witness unless his evidence does not inspire confidence, i,e, discrepant is belied by the medical evidence or there was any motive to falsely implicate the accused "
' Similarly in a case reported as Abdul Aziz v. Muhammad Lai and 2 others [2001 SCR 402] it was observed by this Court:-- "The contention of the learned counsel for the accused that the evidence of the eye-witnesses cannot be believed because they are related to the deceased is also without any substance for the simple reason that it is well-settled principle of law that the evidence of a witness cannot be discarded merely on the ground of relationship; if the evidence of a related witness rings true, he cannot be disbelieved simply because he is related to the concerned party."
' Similar view prevailed in the case titled Muhammad Waris v. The State [2008 SCMR 784], wherein it was observed by the Supreme Court of Pakistan as under:-- " It is true that Muhammad Amin P.W. was a brother of Abbas deceased while Muhammad Hanif P.W. was a brother-in-law of the two deceased persons but then nothing could be brought on record by the defence which could establish any ill-will, animosity or reason which could have led the said two eye-witnesses to falsely implicate the petitioner in the crime in question and to falsely substitute him for the actual offender."
8.lt may be observed that the statement of a witness on account of being interested can only be discarded if it is proved that the witness has ulterior motive of falsely implicating an accused .- Mere relationship per se does not discredit the testimony of an eye-witness. The testimony of a related eye-witness is reliable if the evidence of a witness is otherwise found trustworthy and rings true. No illegality has been brought on the record to show that the prosecution witnesses have falsely implicated the accused in the commission of offence. There is no question of false implication of the accused. The judgment of the Trial Court is in line with the law laid down by this Court as well as the Supreme Court of Pakistan, ln a case reported as Mehtab Khan v. The State [PLD 1979 SC (AJ&K) 23] observed as under:-- "(a) The mere fact that the witnesses are related inter se or related to the deceased is not sufficient to discredit outright their testimony if otherwise such witnesses are found to be witnesses of truth.
(b) But where the witnesses are found to have been interested and chemical in the sense that they have a motive to implicate falsely the innocent persons from other party, the Court should be on guard and cautiously look for some supporting circumstances with a view to eliminating the chances of false implication especially in cases where there is a background of blood feuds between the parties or a chain reaction of retaliatory murders.
(c)Corroboration does not necessarily mean the evidence of an independent witness but anything in the circumstances which tends to satisfy the Court that each interested witness has spoken the truth.
(d)The corroboration need not necessarily be of the same probative force as in the case of an approver since the idea behind seeking extraneous support is that no innocent person is falsely implicated.
(e)When there is total absence of physical circumstances to connect the accused with the crime, there must be strong corroborative evidence to carry conviction, especially against the background of Tong standing feuds leading to somewhat similar incidents in the past."
' We are also fortified in our view in a case titled Khizar Hayat v. The State [2001 SCMR 429], wherein it has been observed as under:-- " There is no rule of law that statement of interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances."
9. While adverting to the argument of the counsel for the convicts-appellants, regarding the site plan, we have perused the site plan with the help of the counsel for the parties. The learned counsel for the convicts-appellants failed to substantiate any contradiction. At the very outset we may observe that site plan is not a substantive piece of evidence, lt is just prepared to understand and appreciate or explain the ocular and the other evidence brought on record. From the examination of the site plan, it transpires that the Mill is situated at a distance of 378 feet, from the place of occurrence and the version of the accused that the complainant party attacked the accused when they were present in the Mill is falsified and there is nothing on the record to prove otherwise. The learned Shariat Court has also not disbelieved the prosecution witnesses, ln paragraph 10 of the judgment of the Shariat Court it is observed that "in view of their being injured during the fight, their presence on spot and their eye-witness account cannot be doubted, nor has any doubt been created in their statements". Although Tahir Saleern, P.W., a Suzuki driver, was declared hostile, but he admits presence of the accused persons and the complainant with Mst. Robina Bibi and Nisar on spot. He also admits that the accused were firing with fire-arms. He also did not deny the presence of Saqib Majeed and Waheed Qureshi on the spot, ln these circumstances, the statements of the eye-witnesses are beyond any doubt which are further corroborated by the medical evidence which shows that the seats of the injuries are the same which have been narrated in the F.I.R. Even otherwise the site plan is not a substantial piece of evidence and that can be ignored in presence of direct evidence. We are fortified in our view by a case reported as Arshad Mahmood & another v. The State & another [2010 SCR 75], wherein it has been observed:--- ' We observe that the site-plan is not a substantive piece of evidence and cannot be used to contradict or discard unchallenged ocular testimony. The only purpose to prepare the same is to appreciate or explain the evidence on the record and cannot be given preference on direct evidence of credible eye-witnesses. Same is the position of other confirmatory and secondary evidence."
10.lt was contended by the learned counsel for the accused-appellants that it was a free fight and it was not a pre-meditated. This contention is not supported by any independent evidence.
Admittedly the accused party was armed with fire-arms. This fact negates the argument of the learned counsel for the accused-appellants. The participation of the appellants with the lethal weapons which resulted into death of one person and injuring three other persons is not denied.
This shows their common intention of attacking on the complainant party. During the course of arguments, a query was made to Raja Muhammad Hanif Khan about the injuries received by the accused party, he replied that those were caused by pelting stones which fact is not denied, Even in the F.I.R, this fact has been mentioned. The contention of the learned counsel for the complaint seems to have force in it. lt is also part of the record that the place of occurrence was a well populated area and a number of persons came there for the rescue of the complainant party.
Therefore, the possibility cannot be ruled out that the injuries caused to the accused were due to grappling and pelting of stones.
11. So far as the argument of the learned counsel for the accused that the application of the accused was not properly dealt with by the Investigating Officer is concerned, it may be stated that the version of the accused-appellants was thoroughly examined and was found incorrect.
Consequently, a private complaint was lodged by the accused persons which was dismissed. That order was assailed before the Shariat Court which met the same fate 12.therefore the argument of the counsel for the accused has no force, lt may also be stated that the contention of the learned counsel for the accused-appellants that only three crime empties were recovered from the spot has no force because in presence of direct evidence, the recovery of empties has no evidentiary value.
13.The contention of the learned counsel for the accused that only three crime empties were recovered from the spot and they were not sent to the Forensic science Laboratory for analysis, has no force because where there is direct and unimpeachable evidence, it does not make the case doubtful and it becomes irrelevant in the circumstances.
14.The learned counsel for the accused has contended that there are discrepancies in the statements of the prosecution witnesses. No material discrepancies have been brought to our notice. The discrepancies which the learned counsel has pointed were insignificant and those have no substance to discard the statements of the prosecution witnesses, ln the criminal law the quantity of evidence is not relevant but the quality of evidence has to be seen. We are fortified in our view in a case reported as Muhammad, Attique v. The State [2011 SCMR 1378], wherein it has been observed:-- "6. Learned Advocate Supreme Court for the appellant has not been able to convince us that the evidence of the eye-witnesses suffered from discrepancies. The contradictions as pointed out by learned Advocate Supreme Court are insignificant. The appellant was nominated in the F.I.R, and there was no plausible reason for substitution. Even the appellant could not lead a defence to suitably refute the charges."
15.lt may be stated that it is a broad day light occurrence and the F.I.R, was lodged promptly, therefore, the question of substitution of the accused does not arise. The question of identification stands fully proved as the parties are known to each other. The presence of the eyewitnesses on the spot is fully proved who remained consistent with their statements, on all material points and their testimony cannot be discarded merely on the ground of relationship. Even otherwise they are independent witnesses and their presence on spot at the time of occurrence is established, as laid down by law referred to above. The assailants came on the spot with fire-arm weapons which shows that the occurrence was preplanned and premeditated and is not a case of sudden provocation. The learned Shariat Court, while believing the ocular account has failed to give any plausible justification in modifying the judgment of the Trial Court which was based on sound and cogent reasons and did not suffer from any misreading or non-reading of evidence. The reasons advanced by the learned Shariat Court while acquitting the accused persons are based on inference which has been drawn by it on presumptions, ln such-like situation, we have no hesitation in holding that the judgment passed by the Shariat Court is perverse, arbitrary and capricious needing interference by this Court, The prosecution has been successful in proving its case beyond any reasonable doubt.
' Resultantly, the appeal filed by the convict-appellants is hereby dismissed whereas the appeal filed by the complainant is accepted. Consequently the judgment passed by the Trial Court is restored. The accused's-convicts shall be taken into custody and sent to Central Prison, Muzaffarabad, to undergo remaining sentences.