MOHAMMED AZAM KHAN, CJ. -- The above-titled appeals under Section 25 of the AJ&K Islamic Penal Laws (Enforcement) Act, 1974, arise out of the judgment of the Shariat Court of Azad Jammu & Kashmir dated 8.12.2010, whereby while accepting appeal of Ahmed Subhani, sentence of death as qisas awarded to him has been converted into life imprisonment and appeal filed by the complainant Muhammad Azam and others against acquittal of respondents in appeal No 20/2006 has been dismissed. Since both the appeals arise out of the same judgment, therefore, are being disposed of through this single judgment.
2. A Ghallan under Sections 302, 147, 148 and 149, APC, was filed in the District Court of Criminal Jurisdiction, Kotli on 21.5.2005 against Ahmed Subhani, Lubaib Ahmed Subhani, Tariq Younas, Mst.
Salma, Mst. Waseem Fatima alias Waseena and Jamila Fatima. After necessary proceedings the Trial Court through its judgment dated 31.1.2006, convicted and sentenced the appellant Ahmed Subhani to death as qisas while other accused were acquitted of the charge. Ahmed Subhani filed an appeal against the conviction while legal heirs of the deceased and complainant, Muhammad Azam filed an appeal against the acquittal of other accused persons. The Shariat Court of Azad Jammu & Kashmir" vide impugned judgment dated partly accepted the appeal filed by Ahmed Subhani. The sentence of death as qisas awarded to him has been converted into life imprisonment while appeal against the acquittal has been dismissed. The appellant,Ahmed Subhani is also declared entitled to the benefit of Section 382-B, Cr.P.C.
3. The complainant, Muhammad Azam filed a written report on 17.4.2005 at Police Station Fatehpur Thakyala against Ahmed Subhani, Lubaib Ahmed Subhani, sons of Fazal, Salma w/o Fazal, Waseem Fatima alias Waseena and Jamila Fatima, daughters of Fazal, Tariq Younas s/o Muhammad Younas, of Nandgaku. He alleged that he is the resident of Nandagali. Today, on 17th April, 2005, at 4:30 p.m. his brother's wife, Haleema w/o Muhammad Rafique and sister Kali Begum w/o Muhammad Sadiq went for cutting wood in shamilat deh land which is in his and his brother's possession. When they were cutting the branches of Bauhinia variegata tree (Orchid tree/Camel's Foot Tree/Mountain-ebony), commonly known as Kalyarr all the six accused persons with common intention, started abusing them. On hearing the abuses, his brother, Muhammad Rafique went on the spot and asked the accused that the land is ours and they will cut the wood at any cost whereupon accused No, 1, Ahmed Subhani, who had a batten (soti) in his hand, hurled a blow at the head of his brother, Muhammad Rafique, with intention to kill, who fell on the ground. Blood started oozing out of his nose and ear. The other. accused Nos. 2 to 6 gave kicks and fists blows to the deceased and also pelted stones. On hearing the noise, the complainant, Muhammad Rafique s/o Fazal Dad, Rasheed s/o Mahandi, Safdar s/o Muhammad Zaman, Muhammad Zaman s/o Mahandi, residents of Nandagali and other residents of the village reached on the spot and witnessed the whole occurrence and rescued his brother from the accused persons. Injured, Muhammad Rafique was brought to the Tehsil Headquarter Hospital, Fatehpur Thakyala. He is in an unconscious position. The motive behind the occurrence is the dispute over the land between the parties. The accused have committed the crime with intention to kill. On this report a case under Sections 324, 337-A, 147, 148 & 149, APG, was registered at Police Station Fatehpur Thakyala. Later on the deceased succumbed to the injuries in Pakistan Institute of Medical Sciences (PIMS), Islamabad, whereupon Section 302, APC, was added and after necessary investigation, challan under Sections 302, 147, 148 and 149, APC, was filed in the District Court of Criminal Jurisdiction, Kotli.
4. Raja Inaamullah Khan, advocate, counsel for the convict-appellant, argued that the occurrence is unseen. There is no eye-witness. The prosecution concocted and fabricated a false case against the accused persons, In fact no occurrence took place. The deceased slipped from a slope, due to which his head struck with a tree of Acacia modesta (phulahi). The complainant was informed of the incident. He took him in injured condition to the hospital and later on he died in PIMS, Islamabad. The FIR was registered after many days with pre-planning. The learned counsel submitted that in the FIR the prosecution has alleged that apart from the nominated witnesses, other inmates of the village reached at the spot who witnessed the occurrence but none of them was cited and produced as a witness. Only related and inimical witnesses, who had previous enmity and had a motive to falsely implicate the accused in the case, have been produced. All the witnesses are closely related. PW-1, Muhammad Azam is real brother of the deceased. PW-2, Muhammad Rafique and PW-4, Muhammad Zaman, are cousins while PW-5 is the son of Muhammad Zaman. Kali Begum, witness, is real sister of the deceased. Recovery witnesses are also close relatives. One is the brother-in-law of the deceased and the other is Muhammad Azeem, who is also from near kin. The learned counsel submitted that from the cross-examination of witnesses, it is proved that most of the witnesses reside at a considerable distance i,e, at a walking distance of % hour away from the place of occurrence. The learned counsel submitted that the parties have dispute over a piece of land which was in the ownership of Faiz Muhammad, who gifted the same to his wife Fatima and Safeer. Fatima is the real sister of Fazal, the husband of accused Salma. Fatima executed a gift-deed of the said land in favour of Faza! and ultimately the land devolves upon all the accused persons, who are legal heirs of Fazal. Muhammad Zaman, witness, challenged the said gift-deed by way f a civil suit. The complainant Muhammad Azam, appeared as a witness in the said case and got his statement recorded but while appearing as prosecution witness, he denied the knowledge of any such suit filed for cancellation of gift-deed.
Certified copy of his statement has been brought on the record, which is at page 63 of the Trial Court's file. Such a witness, who openly tells lie in the Court, how can be relied upon for convicting the appellant. The learned counsel submitted that enmity between the parties was of such extent that when Faiz Muhammad, who is also one of the close relatives of the parties, died, the complainant party, due to gift of the land, didn't allow his legal heirs to bury him in the village's graveyard and he was buried at a separate place which fact is borne out from the statement of Muhammad Rafique, witness. The fact that dispute of the land was in respect of land which was in the ownership of Faiz Muhammad is admitted by Safdar Hussain, witness, in the Court. The learned counsel further referred to the statement of Muhammad Shabhir, witness, who admitted in the Court that they have got registered a criminal case against Muhammad Tariq in respect of khalsa land. The learned counsel referred to the cases reported as Muhammad Rafique & 4 others v. The State [2005 SD 507] and Umer v. The State [2009 P.Cr.L.J. 1119].
In the case reported as Muhammad Rafique & 4 others v. The State [2005 SD 507], all the eye- witnesses of murder occurrence were found inimical towards the accused and their statements were not supported by an independent corroboration, it was observed that it would be unsafe to rely upon the oral statements of such eye-witnesses alone for maintaining conviction of accused in case of capital charge under Section 302, PPC.
In the case reported as Umer v. The State [2009 P.Cr.LJ. 1119], it was observed by the division bench of Karachi High Court that it is a settled law that benefit of even a slightest possible doubt created in the prosecution case must go in favour of the accused, It is also well-settled that where prosecution fails to establish its case against the accused, then for dispensation of justice statement of accused recorded under Section 342 Cr.P.C., is to be looked into and believed in totality
5. The learned counsel next submitted that there are two versions of the prosecution, In the written report the complainant stated that the occurrence took place at Nandagali at 4:30'p.m. while in the Court statements all the witnesses have stated that the place of occurrence is Narrah AkJyan Mohra which is at a walking distance of % hour from Nandagali. Two versions have come from the prosecution side in respect of place of occurrence, It is now a settled law that when there are two versions, one favourable to the accused is to be adopted, In the FIR the prosecution has alleged that the occurrence took place ... shamilat deh land which is in possession of the complainant and his deceased brother while- in the site-plan the land is shown to be in the ownership of the accused.
6. The learned counsel argued that as per prosecution story, there is no pre-meditation or pre- planning. According to the prosecution, two ladies went to cut the woods and when they were cutting woods, the accused respondents forbade them. The deceased, Muhammad Rafique, came there and the occurrence took place. The place of occurrence is alleged to be situated near the house of deceased. According to the prosecution, the women were cutting branches of the tree.
The deceased was not injured near that tree rather he was injured 67 meters away from the tree which is near the tree of Acacia modesta (phulahi), nearer to the house of accused. He submitted that if the accused had intention to attack and kill the deceased then they should have gone to the tree where ladies were cutting wood. They didn't go there rather the deceased came towards the house of the, accused persons.
The prosecution case is falsified and prosecution failed to prove the preplanning or intention.
7. The learned counsel vehemently argued that the prosecution case is full of doubts. The prosecution failed to prove the case from cogent and reliable evidence. All the witnesses contradict each other, It has come in the statements of Muhammad Azam, Muhammad Rafique and Haleema that the place of occurrence is Narrab Akliya Mohra which is at a distance of 3/4 hours from Nandagali. All the witnesses state that they are residents of Nandagali and they reached at the place of occurrence after hearing the noise. The learned counsel argued that if the witnesses were attracted after hearing the noise, how they witnessed the whole occurrence. How they were in the knowledge that the ladies have come to cut the tree branches. All the witnesses stated a parrot-like narration of the event. The statements of eye-witnesses are not plausible in natural course. The witnesses have suppressed the true facts. The origin of incident is shrouded in mystery. The version of the defence that deceased slipped and his head struck with the tree, due to which he was injured is a plausible one because Muhammad Munir, Assistant Sub-Inspector and Shaukat Hayat, SHO, in their Court statements, admitted that there was blood on tree of Acacia modesta (phulahi). If the deceased was hit with a stick by the accused Ahmed Subhani, how there was blood on the tree of Acacia modesta (phulahi). The learned counsel further argued that the prosecution version is falsified from another fact that according to the prosecution only one stick blow was hurled by Ahmed Subhani at the head of the deceased but in the post-mortem report, there are 14 injuries on head and face of the deceased. This fact proves that the witnesses have not seen the occurrence, It is an unseen occurrence and a false and fabricated case has been tailored against the accused respondents due to enmity, In the inquest report and injury report, four injuries have been shown on the head and face of the deceased. The learned counsel submitted that the prosecution has alleged that the accused also pelted stones on the witnesses and the deceased.
None of the witnesses was injured and the SHO has stated in the Court that pelting of stones is not proved from the evidence. The learned counsel referred to the cases reported as Shahzad alias Sahib & another v. The State [2008 P.Cr.LJ. 17] and Mehdi v. The State [NLR 1985 Crl. 276].
In the case reported as Shahzad alias Sahib & another v. The State [2008 P.Cr.LJ. 17], while dealing with the fact of appreciation of evidence it was observed that benefit of doubt even slightest one have to be extended in favour of the accused.
In the case reported as Mehdi v. The State [NLR 1985 Crl. 276], It was observed that eye-witnesses of a murder offence, who are not residents of locality where the murder took place, should not be believed.
8. The learned counsel farther argued that the conduct of the witness is unnatural. Apart from two ladies, six male witnesses, who are near relatives of the deceased and inter se related, stated that they reached the place of occurrence and witnessed the whole occurrence. They are more in number as compared to the accused party but none of them tried to stop the accused, Ahmed Subhani or any other accused from hurling stones or giving stick blows to the deceased or none of them stated as to how the deceased went 67 meters away from the tree from which the ladies were cutting branches. This conduct shows that none of the witnesses was present at the place of occurrence. The learned counsel argued that recovery of batten (soti) is not proved. The recovery is planted one. The SHO states that there is one room of Ahmed's house while the recovery witnesses state that apart from three rooms of Ahmed Subhani's house, there is a veranda and cattle's room.
9. The learned counsel advanced another argument that in fact no case was registered on 18th of April, 2005. The FIR was registered on 20th with consultation, after the death of deceased. This fact is proved from the recovery memo, of blood. The statements of most of the witnesses under Section 161, Cr.P.C., were not recorded on the day of occurrence. Statements of Zaman, Muhammad Rasheed and Safdar, PW-3, under Section 161, Cr.P.C, were recorded on 20.4.2005. The statement of Haleema was recorded on 4.5.2005. All the witnesses are close relative. The recording of statements at a belated stage casts serious doubts in the investigation and prosecution story. The learned counsel referred to the recovery memo, of blood which is shown to have been prepared on 18.4.2005. The FIR is shown to have been registered under Sections 324, 337-A, 147, 148 and 149, APG, while in the recovery memo, sections are shown as 302, 147, 148 and 149, 4PC, which is clear proof of the fact that the Police registered the case on 20th April, 2005. No case was registered on 18th April, 2005, particularly when Muhammad Hanif, AS1, stated that section 302, APC, was added on 20th April, 2005. When the deceased was alive, how a case under Section 302, APC, can be registered on 18th April, 2005. This fact further finds support from the statement of Muhammad Rashid, witness, who states that he is the witness of recovery of blood. He went alongwith Police on the place of occurrence and blood was recovered on 21.4.2005. This is clear proof that all the investigation was conducted in an unfair manner and the accused have been implicated in a false case. The learned counsel referred to and relied upon the cases reported as Ghulain Rasool Shah v. State & 10 others [2009 SCR 390], Tufail Hussain Shah v. The State [1994 SCR 275], Muhammad Shah v. The State [2010 SCM R 1009], Asfandyar Wali v. State [PLJ 1977 Peshawar 65], Qabil Shah & others v. The State [PLD 1960 W.P. (Karachi) 697], Irshad & another v. The State [NLR 1991 U.C. 631] and Muhammad Sadiq & another v. The State [PLD 1960 SC 223]. The learned counsel requested for acquittal of the accused appellant, Ahmed Subhani and dismissal of appeal filed by the legal heirs of thev deceased against other accused. -- In the case reported as Ghulam Rasool Shah v. State & 10 others [2009 SCR 390], this Court observed that when two interpretations of evidence are possible, then the one favourable to accused should be accepted and it is the duty of prosecution to prove its case beyond reasonable doubt and benefit of doubt, if any, shall be exercised in favour of the accused.
In the case reported as Tufail Hussain Shah v. The State [1994 SCR 275], it was observed that the prosecution has not only to prove the act which resulted into the death of a person but it has also to prove all the ingredients constituting an offence, It was also observed that if there are two hypotheses which are equally possible, one favourable to the accused is to be given preference.
In the case reported as Muhammad Shah v. The State [2010 SCM R 1009], it was observed by the Supreme Court of Pakistan that it is a cardinal principle of law that when two interpretations of evidence are possible; one favourable to the accused and the other favouring the prosecution, one favourable to the accused is required to be taken into consideration.
In the case reported as Asfandyar Wali v. State [PLJ 1977 Peshawar 65], it was observed that the statements of witnesses recorded under Section 161, Cr.P.C., after considerable delay cast doubts on their statements and cannot be relied upon.
In the case reported as Qabil Shah & others v. The State [PLD 1960 W.P. (Karachi) 697], it was observed that the statements of witnesses under Section 161, Cr.P.C., recorded after 48 hours of the occurrence are doubtful and cannot be relied upon.
In the case reported as Irshad & another v. The State [NLR 1991 U.C. 631], it was observed that safe administration of justice requires that doubts arising out in respect of prosecution case should be resolved in favour of the accused.
In the case reported as Muhammad Sadiq & another v. The State [PLD 1960 SC 223], it was observed that the witness, who is a friend of the deceased didn't disclose to anybody upto 24 years, that he has seen the murder upto 24 hours, the evidence of such witness is of least value.
10.While controverting the arguments of the counsel for the convict-appellant, Mr. Abdu! Majeed Mallick, advocate, counsel for the complainant and legal heirs of the deceased, argued that the judgment of the Shariat Court to the extent of conversion of death sentence awarded to Ahmed Subhani into life imprisonment and to the extent of dismissal of appeal against acquittal, is against law and the facts. The accused are nominated in the FIR, which was promptly lodged. The prosecution has produced six eyewitnesses of the occurrence, who fully prove the prosecution case. Their evidence is cogent and reliable. All the witnesses are residents of the locality and were attracted at the scene of occurrence by hearing noise. They came at the place of occurrence and witnessed the whole occurrence. Mere relationship is no ground for discarding the evidence of a witness. A related witness is as competent a witness as any other witness. The testimony of a related witness can only be discarded if he is inimical towards the accused and has a strong motive to falsely implicate the accused in the case. Mere litigation in respect of a piece of land with some witnesses, the complainant and the deceased, cannot be a ground for discarding the testimony of an eye-witness. All the witnesses are natural, residents of vicinity and their statements are confidence inspiring. Both the Courts below believed the witnesses. The Shariat Court assigned no plausible reason for converting the death sentence into life imprisonment.
11. The learned counsel argued that the place of occurrence is admitted. He referred to the statement of accused Salma recorded under Section 342, Cr.P.C., in which she gives explanation that the deceased slipped and fell on the ground. His head collided with the tree and he died. After admitting the place of occurrence, the statements of witnesses cannot be brushed aside on the ground that the occurrence didn't take place in the manner as alleged by the prosecution. The presence of all the accused at the place of occurrence is proved by the prosecution evidence. The intention can be gathered from the fact that Ahmed Subhani gave a stick blow at the head of the deceased and from the trend of cross-examination it appears that the defence admits the presence of accused and the witnesses at the place of occurrence. The learned counsel argued that there was no mitigating circumstance. The Shariat Court at one side believed the witnesses and declared that it is a broad daylight occurrence; the witnesses are natural and reliable; while on the other hand, the Shariat Court converted the death sentence into life imprisonment without any mitigating circumstance, ln the presence of direct evidence there was no question of benefit of doubt which has been extended b the Shariat Court in favour of the accused respondent. The accused were trespassers who had entered in the land of complainant and the deceased and committed the crime.
12. The learned counsel argued that there are concurrent findings of the two Courts below whereby they believed the witnesses. After believing the witnesses, the accused were liable to be awarded the maximum punishment provided for the offence. He referred to the cases reported as Muhammad Tahir Aziz v. The State & another [2009 SCR 71] and The State v. Muhammad Sabir alias Sabri & 4 others [2005 P.Cr.LJ. 464], He requested for acceptance of appeal of the legal heirs of deceased and prayed that acquittal of other accused be set aside and they may be convicted while death sentence awarded to Ahmed Subhani by the Trial Court be restored.
13.Mr. Muzaffar Ali Zaffar, Additional Advocate- General, argued that the accused are nominated in the FIR, which was promptly lodged. The accused Ahmed Subhani came on the spot with a stick in his hand and gave stick blow at the head of the deceased. By giving a stick blow at the head, the intention is clear that he wanted to do away with the life of the deceased. He submitted that the premeditation is proved. He requested for dismissal of the appeal filed by Ahmed Subhani and acceptance of appeal filed by the legal heirs of the deceased.
14.We have hard the learned counsel for the parties and perused the record. The prosecution produced PW-1, Muhammad Azam, PW-2, Muhammad Rafique, PW- 3, Muhammad Zaman, PW-4, Muhammad Rasheed, PW-5, Safdar Hussain and PW-6, Haleema Bibi as eye-witnesses to prove the prosecution version. The Trial Court accepted the presence of the prosecution witnesses. The Shariat Court while admitting the presence of prosecution witnesses at the place of occurrence observed that there is no premeditation and pre-planning. Enmity between the parties is established. According to the prosecution witnesses the quarrel started over a petty matter and the death was not the result of pre-intention. The defence disputes the presence of eye-witnesses at the place of occurrence. Although the scrutiny of evidence is not the function of this Court but for safe administration of justice we have decided to go through the statements of witnesses.
15.The complainant has stated that at 4:30 p.m., his sister Kali and Haleema went to cut tree branches from the land in their ownership and possession when Salma, Jameela and Waseem alias Waseena, accused, hurled abuses and forbade them from cutting the tree branches. After sometime his brother Muhammad Rafique came there. He was also present at the place of occurrence and stated to have witnessed the whole occurrence, In the cross- examination the witness stated that ladies, Kali and Haleema went to cut tree branches in his absence. He doesn't know that the ladies went to cut branches. He had gone to visit one Kareem. He was informed of the occurrence when he was coming back towards home. He also stated that the place of occurrence is not visible from the house of Kareem. He stated that house of Kareem, Rasheed and Afsar are situated in depth near a kassi. The house of Rasheed is situated at a distance of 300 yards from the house of Kareem. He had reached at a distance of 150 yards from the house of Kareem when he heard noise. This witness stated that while reaching at the spot, he inquired from his sister and sister-in-law the reason of abusing. At that time none of his family members had reached on the place of occurrence. The witness further stated that while coming from Bauhinia variegata tree, towards the house of accused there is a kassi in-between and tree of Acacia modesta (phulahi) is across kassi. After taking into consideration, the site position narrated by the complainant, coupled with the site-plan, it appears that the tree of Acacia modesta (phulahi) where deceased was injured and blood was collected by the Police, is at a distance pf 67 meters towards the house of accused from Bauhinia variegata) tree. This means that the prosecution has suppressed the true facts. If the dispute was relating to the cutting of Bauhinia variegata tree branches, then why the deceased was injured 67 meters away towards the house of accused. If the version of prosecution is admitted true, then the occurrence should have been taken place near Bauhinia variegate tree. The statement of the witness and site-plan and indicative of the fact that the prosecution has suppressed the true story.
16. The prosecution witnesses Muhammad Rafique, Muhammad Zaman, Muhammad Rasheed and Safdar Hussain stated that they were present at their home and went at the place of occurrence after hearing noise. Muhammad Zaman stated that Salma, Jameela, Fatima and Waseem alias Waseena were standing 10/15 yards down from their house. Rafique was standing under the tree of Acacia modesta (phulahi). Haleema and Kali Begum were collecting branches of Bauhinia variegata tree. This also proves that the incident didn't take place near Bauhinia variegata tree which is across the kassi. It took place near the house of accused. Rasheed, who is the brother of Muhammad Zaman, witness, also stated that the occurrence took place near Acacia modesta (phulahi) tree. He went alongwith his brother from his house. Safdar Hussain, who is the son of Muhammad Zaman, witness, states that after hearing the noise, they reached at the place of occurrence. Kali, Haleema and Rafique were present there. Salma and Waseena hurled abuses and forbade them from cutting the branches of tree. This witness states that when he reached at the place of occurrence, there were only Kali, Haleema and Rafique. He has not stated that Muhammad Azam was present there while the version of Muhammad Azam is that he was the first to reach at the place of occurrence and inquired from the ladies. This casts serious doubts on the presence of witnesses. The prosecution story revolves around the cutting of the branches of Bauhinia variegata tree but the place of occurrence is away from Bauhinia variegata tree across kassi near the house of accused. Had the occurrence taken place in the manner as alleged by the prosecution that ladies were cutting branches of Bauhinia variegata tree and the accused forbade them and committed the crime, then the place of occurrence must have been near the Bauhinia variegate tree and not near the house of accused which is across kassi at a higher level, at a distance of 15 yards from the house of accused persons.
17.The occurrence took place on 17.4.2005. All the eye-witnesses are closely related to the deceased and the complainant. The statements of witnesses under Section 161, Cr.P.C, have not been recorded by the Police on the same day. The statement of Rafique, witness, is shown to have been recorded on 18.4.2005. The statement of Muhammad Zaman, Muhammad Rasheed and Safdar, PWs are shown to have been recorded on 20.4.2005 after 3 days of the occurrence and the statement of Haleema is shown to have been recorded on 4.5.2005. All the witnesses, who are close relatives, stated that they took the deceased in an injured condition from the place of occurrence to the police station, In the normal course when the witnesses are present at the time of registration of FIR at police station, their statements under Section 161, Cr.P.C., have to be recorded promptly by the.Police but in the instant case the statements have been recorded after a delay of one day, 3 days and 17 days. No explanation has been furnished by the Police or the witnesses that why their statements were recorded after a delay of one day, 3 days and 17 days. Had the witnesses been present and seen the occurrence, their statements should have been recorded oh the same day. Such witnesses who are inimical towards the accused and their statements are recorded at a belated stage,, cannot be believed. The Supreme Court of Pakistan in the case reported as Muhammad Sadiq & another v. The State [PLD 1960 SC 223] ate page 226 of the report observed as under:-- ".....The Courts below have not been' able to accept the fragmentary and unnatural statement of Sher Bahadur as to the attack by Sadiq on Hazrat Din. The circumstance that he didn't choose to go to the help of his friend whom he found being attacked with a knife, that he didn't disclose what he had seen to any person for nearly 24 hours, and that he showed no concern for the fate of Hazrat pin clearly militates against allowing the least value to his evidence."
18.It was vehemently argued by the counsel for the convict-appellant that in fact no investigation was conducted on 18.4.2005. The police for the first time went on the spot on 20th April, 2005. He referred to the recovery memo, of blood which is shown to have been prepared on but in the heading of recovery memo, section 302 is also included and according to Hanif, AS1, section 302 was included on 20th April, 2005 when information of the death of deceased was received. Initially a case was registered under Sections 324, 337-A, 147, 148 and 149, APC. According to the prosecution, section 302 was added on 20th, when the information of death of the deceased was received. We have perused the recovery memo, of blood which is shown to be prepared on 18.4.2005 and in the heading, there is following entry:-- APC, 148/149, 392/147 {{URDU TEXT}} 17.04.2005 {{URDU TEXT}} 20/05 {{URDU TEXT}} On 17th, the case was registered under Sections 324, 337- A, 147, 148 and 149 and Section 302, APC, was added on 20th. How it is possible if the recovery memo, of blood is prepared on 18.4.2005, when the case was not registered under Section 302, APC, the SHO, instead of Sections 324 and 337-A, APC, shall enter section 302, APC. The recovery memo, appears to have not been prepared on 18th.
It was prepared after 20th when section 302, APC, was added by the Police, It is further proved by the statement of Muhammad Rasheed that the Police went for recovery of blood on 21st. The investigation was conducted in violation of statutory law i,e, Police Rules. This casts serious doubt in the prosecution story.
19. The prosecution has adopted different versions, ln the written report submitted by the complainant, Muhammad Azam, has taken the version that his sister, Kali Begum and sister in law Mst. Haleema, went to cut woods from shamilat deh land which is in his and his brother's possession. The occurrence took place in the land which is shown to be in the ownership of Noor Begum, sharer, in the record produced by the prosecution and it is now in the ownership and possession of Ghulam Mohiyuddin, Binyamin and others, her sons. The prosecution has taken three different versions in respect of ownership of the land coupled with the fact that the occurrence didn't take place near Bauhinia Variegate tree, where, as alleged by the prosecution. Kali Begum and Haleema were cutting branches of Bauhinia variegata tree. A serious doubt is cast upon the whole prosecution story and the presence of witnesses.
20. The case of prosecution is that Haleema and Kali Begum had gone to cut woods. They had spears with them. Later on the prosecution altered the version and instead of woods they claimed that they were cutting branches and plucking flowers of Bauhinia variegata tree. No spears or branches of Bauhinia variegata tree which were alleged to be cut by Haleema and kali Begum, have been taken into possession, It casts serious doubts whether two ladies were cutting Bauhinia variegata tree branches or not. t was the duty of prosecution to take into possession the spears and tree branches because motive of the occurrence is stated to be cutting of tree branches by Haleema and Kali Begum. The prosecution failed to prove the motive, It is not always necessary to prove the motive but when the motive is alleged, it is necessary to prove the same.I 21.We have also considered the arguments of the counsel for the convict-appellant that the prosecution has alleged one stick blow to the deceased by Ahmed Subhani while in the post- mortem report 14 injuries are shown. The argument appears to be misconceived. Mostly injuries shown by the doctor are bruises and abrasions on the face, forehead and nose of the deceased.
These can be caused by falling on the rough ground or falling on the-tree. The argument is not worth consideration.
22. It was also argued by the counsel for the convict-appellant that conduct of the witnesses is unnatural. 4/5 witnesses state that they were present at the place of occurrence. They didn't react nor did they try to stop the accused from giving batten blow to the deceased. We have perused the site sketch, In the site-sketch the occurrence is shown to have been taken place at point No, 1.
Witnesses are shown to have been standing at points No, 3, 4 and 5. All the three points are around point No,
1. Houses of convict-accused are shown to be at points No, 6 and 7. Witnesses are shown to have been standing at point No, 4 and 5, which are in-between point No, 1 and houses of the accused-respondents. Had the witnesses been present at the place of occurrence, then they must have intervened because the'accused are said to be two males and three females while the complainant party comprised of six males and two females. The prudence doesn't accept that two males shall attack upon six males and two females and if at all they attacked, why witnesses kept mum and didn't react. The conduct of witnesses also casts serious doubts on the presence of witnesses at the place of occurrence.
23.The two Courts below have believed the presence of witnesses and the findings recorded by the two Courts whereby witnesses were believed, cannot ordinarily be disturbed. The case is of direct evidence, all the witnesses are not only related but inimical. This Court in a number of cases has held that mere relationship is no ground for discarding the testimony of eye-witnesses provided the testimony is confidence inspiring and reliable. In the case reported as Mehtab Khan v.
The State [PLD 1979 Supreme Court (AJ&K) 23] it was observed as under:-- "After studying these authorities and considering the arguments, we have come to the conclusion that:--
(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 inimical 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 circumstance 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)................................
(d)...............................
(e) ...................................
Similarly in the case reported as Abdul Rashid & 3 others v. Abdul Ghaffar & 5 others [2001 SCR 240], it was observed as under:-- "It 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 that the mere relationship is no ground for discarding the evidence of a witness. The suggestions made to Muhammad Siddique and Walayat Khan in cross-examination regarding their relationship shows that according to the defence, they were related to the complainant party remotely; according to the suggestion that aforesaid two witnesses suppressed the names of their grandfathers in the cross-examination so as to , conceal their relationship...."
The eye-witnesses are not only related but there is a history of civil litigation which has developed into enmity and the extent of enmity is such that when Faiz Muhammad, who has gifted his land to bis wife Fatima, who is the sister of Fazal, father of Ahmed Subhani, convict-appellant, died, the complainant party didn't allow his relatives to bury him in the common village graveyard. He was buried in his private land. The enmity is admitted by the Shariat Court by holding that the witnesses are inimical. The testimony of such witnesses cannot be relied upon without stronger corroboration. The corroboration' is missing.
24.We have also considered the argument of the counsel for the complainant and the legal heirs of deceased that from the trend of cross-examination and the statement of Salma, accused, recorded under Section 342, Cr.P.C., the prosecution has admitted the place of occurrence. We have examined her statement. She has stated that she was at home. Rafique was cutting Bauhinia variegata tree. She forbade him whereupon he ran towards her to attack her, while running he slipped from the slope and his head struck with the tree of Acacia modesta (phulahi). She raised an alarm that Rafique has fallen. His relatives came there and took him. It is a settled law that statement of an accused is to be accepted or rejected as a whole, It is not permissible to accept the inculpatory part to corroborate the prosecution case and reject the exculpatory part. Mst.
Salma and her two daughters, Waseem Fatima and Jameela Fatima specifically alleged that Rafique was cutting the tree, Salma forbade him from cutting the tree whereupon he ran towards Salma for attacking her. This version finds support from the site-sketch and the statements of witnesses that Bauhinia variegata tree is located at a distance of 67 metre from the place where Rafique was injured and the Police collected blood. This place is near to the houses of the accused-convict. Had the incident been taken place near Bauhinia variegata tree then the prosecution version was worth consideration that the accused party attacked Rafique but Rafique went from Bauhinia variegata tree to the place of occurrence, which is admittedly at a higher level as compared to the Bauhinia variegata tree. The version put forth by the defence appears to be more probable, In the case reported as Ghulam Qadir v. Esab Khan & others [1999 SCMR 61], it has been observed as under:--- "....The admission of the accused respondent that he had made firing is not to be read in isolation.
He has not stated that the deceased was injured by the firing made by him, therefore, he has not admitted the criminal liability. The supporting evidence has been disbelieved by the Trial Court."
In the case reported as Shabhir Ahmed v. The State [PLD 1995 Supreme Court 343] it was observed as under:-- "6. The statement of an accused has to be read in its entirety", It is to be accepted or rejected as a whole, It is not permissible to accept the inculpatory part to corroborate the prosecution evidence and reject the exculpatory passage. Where the accused makes a statement to have committed an offence but simultaneously raises plea constituting a defence, the Court will not rely on the inculpatory portion and reject the exculpatory one. However, where prosecution has produced clear, cogent and reliable evidence, the exculpatory part may be rejected and conviction can be recorded on such evidence."
In the case reported as Tufail Hussain Shah v. The State [1994 SCR 275] it was observed as under:-- " It is settled law that if there are two hypotheses which are equally possible, one favourable to the accused is to be given preference, ln the instant case, in view of statement of Patwari, Muhammad Sharif, and the attending circumstances we are of the opinion that the rifle went off due to the negligence of the accused-appellant; the fact is also substantiated by the statement of Ghulam Mustafa, P.W. wh> has stated' that he told the accused-appellant that he should not handle the rifle because it was loaded. This implies that the accused appellant picked up the rifle and was handling the same. Thus, it cannot be said that the accused fired at Sajawal, deceased, with the intention of killing him, especially so when there appears to be no motive whatsoever on the part of the accused-appellant to do the same."
In the case reported as Ghulam Rasool Shah v. State & 10 others [2009 SCR 390], it has been observed as under:-- "It is settled principle of law that were two interpretations of evidence are possible, then the one favourble to accused should be adopted. The view finds support from the cases reported as Khushal & another v. The State [1971 SCM R 357], State through Advocate-General v. Farman Hussain & others [PLD 1995 SC 1], Kareem Dad v. Zahir & others [2004 SCR 36] and Tufail Hussain Shah v. The State [1994 SCR 274]."
Thus, it can safely be held that the occurrence didn't take place in the manner as alleged by the prosecution.
25. After considering the whole aspects of the case, we have reached to the conclusion that the presence of witnesses at the place of occurrence appears to be doubtful but both the Courts below have believed the eyewitnesses. The Shariat Court has observed that there is no pre- meditation and pre-planning, enmity between the parties is established but the prosecution witnesses showed that the quarrel started over a very petty matter and the death was not the result of pre-intention, therefore, the prosecution version cannot be out-rightly rejected. The doubt arising out about the presence of witnesses at the place of occurrence is a mitigating circumstance and the convict-appellant is entitled for lesser punishment. The convict has served out a considerable period in jail. He is behind the bars for the last more than eight years. The sentence undergone by him will serve the purpose to meet the ends of justice.
26. Respondents in Appeal No, 6/2011 were acquitted by the Trial Court. The Shariat Court dismissed the appeal against acquittal. After considering the whole record we find no illegality in the acquittal order passed by the District Court of Criminal Jurisdiction and the Shariat Court.
The result of the above discussion is that appeal No, 4/2011, filed by Ahmed Subhani is partly accepted. The sentence of life imprisonment is converted into one already undergone. He shall be released forthwith if not required in any other case. Appeal No, 6/2011, filed by the complainant and the legal heirs of the deceased is dismissed.