' MUHAMMAD AZAM KHAN, C.J.---The captioned appeals under section 25 of the Islamic (Penal)
Laws Enforcement Act, 1974 have been filed from a consolidated judgment of the Shariat Court dated 29th June, 2009, whereby appeal filed by Ghulam Hussain, complainant, was partly accepted and it was ordered that appellant Ghazanfar alias Kala shall pay Rs.200,000 as compensation to the heirs of Muhammad Asif, deceased, while appeal filed by the present convict-appellants and Muhammad Ramzan were dismissed. Since both the appeals arise out of a single judgment of the Shariat Court, these are bcing disposed off through consolidated judgment.
2. The appellants and 11 other accused were challaned in the District Court of Criminal Jurisdiction Kotli on "1st February, 2005, under sections 302, 147, 149, A.P.C. And 13 of the Arms Act. The trial Court started day to day hearing of the case and at the conclusion of trial on 31st March, 2005 decided the case declaring the accused-appellants guilty of offences under sections 302, A.P.C. And 13 of the Arms Act, while the accused Muhammad Ramzan was declared guilty of offence under section 13 of the Arms Act. It was also held that sections 147, 148 and A.P.C., are not attracted. The appellants were convicted under sections 302, A.P.C. And 13 of the Arms Act. The accused- appellant No. 1 was convicted and sentenced under section 302(b), A.P.C. To life imprisonment and six months' simple imprisonment under section 13 of the Arms Act while accused-appellant No.2 was convicted under sections 306/308, A.P.C. To the sentence of Diyyat. He was also convicted to Rs.10,000 fine under section 13 of the Arms Act. Muhammad Ramzan, accused, was convicted under section 13 of the Arms Act to six months' simple imprisonment. He was acquitted of the other charges while extending the benefit of doubt. The accused persons namely Ali Muhammad son of Nadir Khan, Mushtaq son of Deewan Ali, Abid son of Muhammad Younas, Yasir son of Muhammad Suleman, Waheed son of Muhammad Ashraf, Azhar Iqbal son of Muhammad Nazir, Shahbaz son of Ali Muhammad, Bilal son of Shahbaz, Maooz son of Sohbat Khan and Khaliq son of Muhammad Hussain were acquitted while extending the benefit of doubt. Appellant No.2 was ordered to deposit the amount of diyyat Rs.4,66,560 which was to be paid to the legal heirs of Muhammad Asif, deceased. He was ordered to remain in jail till payment of diyyat. Dissatisfied from the judgment of the District Criminal Court Kotli, the appellants, herein, and Muhammad Ramzan filed appeals against the conviction order while the complainant also filed an appeal for enhancement of sentence awarded to the appellants and Muhammad Ramzan. He also challenged the acquittal of other accused persons. The Shariat Court disposed off the appeals through consolidated judgment delivered on 29th June 2009 in the manners indicated above.
3. Mr. Abdul Majeed Mallick, counsel for the convict-appellants, argued that the judgment of the Shariat Court is against law and the record, as such not maintainable. The learned counsel argued that the prosecution cooked up a fabricated case against 18 accused persons on the charge of murder in consequence of alleged conspiracy hatched by them to murder the deceased. The trial Court as well as the first appellate Court disbelieved the prosecution version. He argued that during investigation, four accused persons were found innocent and were released .Under section 169 of the Criminal Procedure Code while out of 13 accused persons, who were challaned, the trial Court found 10 persons innocent and acquitted them of the charge. The prosecution evidence was disbelieved by both the Courts to the extent of 10 accused persons. Both the Courts should have disbelieved it to the extent of the convict-appellants, too.
4. It was vehemently argued by the learned counsel that the alleged eyewitnesses and recovery witnesses were not only partisan, interested and related to the deceased and inter-related among themselves but were admittedly inimical to the convict-appellants. Their testimony is self- contradictory and suffers from inherent defect. It was not believed to the extent of acquitted accused by both the Courts below. The same could not be relied upon and believed for convicting the appellants. He further argued that the witnesses were not found Aadil (3,0, therefore, the conviction order cannot be based on their testimony. There was no corroboration from independent sources of the evidence of inimical, interested and related witnesses.
5. The learned counsel advanced another argument that in the post-mortem report, fatal injuries are shown as injuries Nos.1 and 2. These were attributed to appellant No.2. Injury No.3 was ascribed to appellant No.
1. The post-mortem report and testimony of the Doctor are in direct conflict with the ocular evidence and belie the same. Such evidence cannot be relied upon for the purpose of corroboration. However, the subordinate Courts erroneously used such contradictory evidence as corroboratory evidence. It was further argued that the place, time and manner of occurrence were concocted and fabricated. True facts were suppressed by the prosecution. The place of occurrence was a different one. The past litigation between the parties is admitted. The whole case has been concocted on the basis of enmity. He argued that a decree for possession was passed in favour of Ali Muhammad. The complainant party was avoiding delivery of. Possession and the present case was fabricated to bring the appellants in defence to defeat the decree of possession of the land. The learned- counsel further argued that F.I.R. Was lodged after a considerable delay.
The alleged recovery of weapon of offence is false and fabricated. The site-plan was prepared with connivance of the complainant party. It was false. The evidence was not appreciated in a lawful manner. Both the Courts below appreciated the evidence in an arbitrary manner and self- contradictory evidence was relied upon. The defence version was erroneously disbelieved. The learned counsel referred to a portion of F.LR. Wherein it is alleged that all the accused fired upon the deceased in the bazaar. In the site-plan, this place of firing is not shown. The accused are shown at Point No.5 in the site-plan which casts serious doubt in prosecution story.
6. The learned counsel further argued that the witnesses are chance, related and interested. They cannot be relied upon. He referred to the statement of Ghulam Hussain, witness, who stated that all the accused persons were firing in the bazaar. Ramzan fired 4/5 times. He referred to page-6 of the statement of this witness where he has stated that accused Nos.5 to 13 entered in the street after him, therefore, the presence of accused persons Point No.5 is not proved and prosecution story is belied. The learned counsel referred to the statement of prosecution witness, Aftab Ahmed, who is real maternal uncle of the deceased, Asif. He stated that all the accused were hiding at the place of occurrence. This witness has stated at page 3 of his statement that he saw Ramzan and others and they were not armed. This witness has further stated at pages 5 and 6 of his statement that Ghazanfar accused was hiding himself in a but while Awais was hiding himself in the bushes. This shows that the witnesses are not telling truth. The learned counsel referred to the statement of ,Muhammad Shafique, witness, who is son of the sister of the father of ueeeased, who stated that Ghazanfar, accused, was in the hut. In cross-examination he stated that none of the accused apart from Muhammad Ramzan was armed. The statement of these two witnesses is falsified from the statement of Patwari who stated that none of the witnesses has told him that the accused were hiding themselves in bushes and hut.
7. The learned counsel attacked the recovery memos and submitted that these are fictitious because Makhan Khan, witness of recovery, stated that crime-empties were recovered from bazaar while prosecution story is that the crime-empties were recovered from Point No.5 of site- plan which is a distant place from bazaar. This witness also stated that he signed recovery memos of blood-stained clothes at Police Choki where he also signed 5/7 papers. The learned counsel referred to the case reported as Niaz Ahmed v. The State and 2 others (2008 SCR 326).
8. Lastly he argued that the story of revenge by Arshad is false and fabricated because the witnesses were accused in attack case upon Arshad. Had Arshad planned the occurrence, the accused should have, murdered the witnesses. The learned counsel also argued that firstly the case is not proved against the accused-appellants, alternately if the Court comes to the conclusion that the case is proved, then, too, in the circumstances of the case, to the extent of appellants Nos.1 and 2, the undergone sentence will meet the ends of justice.
9. While controverting the arguments, Sardar Abdul Hamid Khan, counsel for the complainant, argued that the accused are nominated in the F.I.R. Which was promptly lodged. The prosecution has proved its case against all the accused respondents beyond doubt. It was enjoined upon the Courts below to award maximum punishment to the appellants, Ghazanfar and Awais and to the acquitted accused. The learned counsel argued that Arshad hatched a conspiracy because he was attacked upon and allegation of injuring Arshad was upon Asif, deceased, therefore, the accused have direct motive against Asif. There was no grudge or direct motive towards witnesses.
He referred to the case reported as Zahir Hussain Shah v. Shah Nawaz Khan and 3 others 2007 PCr.LJ 1757. The learned counsel vehemently argued that when the case is proved, the normal penalty is death. No reason has been assigned by the trial Court as well as the Shariat Court while awarding lesser penalty. If the witnesses are not found Aadil ( ) the sentence of Qisas {{URDU TEXT}} (',11.,J) couldn't be awarded but death sentence as Tazeer (i7' ) {{URDU TEXT}} can be awarded. The case against appellant No.2, Awais, was proved that the deceased was done to death by his firing. He was liable to be awarded death sentence as Tazeer ( ) {{URDU TEXT}}.
Section 306, A.P.C., has been misinterpreted. He further argued that if Awais was minor, then too, sentence of 14 years was to be awarded in the circumstances of the case. He further argued that Awais was major at the time of occurrence. His father appeared as witness and stated that his marriage took place in March, 1985 and Awais was born after 7/8 months of the marriage.
10. The learned counsel further argued that accused Bilal and others are attributed lalkara ( 1.16 ) {{URDU TEXT}} and firing. Their presence at the place of occurrence is proved, therefore, their acquittal is against law. The learned counsel argued that the report of the ballistic expert is corroborative. There is no major contradiction in the evidence. He prayed for setting aside the acquittal of acquitted accused persons and enhancement of sentence awarded to Ghazanfar and Awais, convict-appellants.
11. Mr. Muzaffar Ali Zaffar, Additional Advocate-General, while adopting the arguments advanced by Sardar Abdul Hamid Khan, counsel for the complainant, argued that it is a case of direct evidence which is confidence inspiring. In the presence of direct evidence, there was no need for corroboratory evidence. In spite of this, the corroborative evidence in the form of recoveries, medical report and report of the Forensic Science Laboratory has been produced. He argued that the case to the extent of Ghazanfar and Awais is fully proved. The sentence of death as Tazeer ( ) be awarded to them and acquittal order against other accused may be set aside.
12. We have heard the learned counsel for the parties and perused the record. Ghulam Hussain, son of Jalal Khan, presented a written application at Police Post Sarsawa on 13th November, 2004, at 4- 30 pm, against (1) Ghazanfar alias Kala son of Muhammad Nazir, (2) Awais son of Muhammad Arshad, (3) Azhar son of Muhammad Nazir, (4) Bilal son of Shahbaz, (5) Muhammad Ramzan son of Faqeer Muhammad, (6) Yasir son of Muhammad Ramzan, (7) Mushtaq son of Deewan Ali, (8)
Waheed son of Muhammad Ashraf, (9) Abid son of Muhammad Younas, (10) Maooz son of Sohbat Khan, Ali Muhammad son of Nadir Khan, Shahbaz son of Ali Muhammad and Khalid son of Muhammad Hussain, castes Pathan residents of Saroah Sarsawa, District Kotli, to the effect that on 13th November, 2004 at 4-00 p.Rn., his son Muhammad Asif when reached in Painda bazaar from Panjera bazaar on a vehicle, accused Nos.5 to 13 who were armed with lethal weapons, raised lalkara ( Gd1 ) {{URDU TEXT}} while seeing Asif that they will not let him go live and will take revenge of Arshad. Accused, Muhammad Ramzan son of Ali Muhammad and others while chasing Muhammad Asif, resorted to fire upon him for murder. For saving his life, he ran towards his house at the backside of Painda bazaar, when, from the side of the house of Muhammad Asif, deceased, Ramzan. Ghazanfar alias Kala son of Muhammad Nazir, Awais son of Muhammad Arshad, Azhar son of Muhammad Nazir, Bilal son of Shahbaz, who had Kalashnikovs in their hands, fired upon Muhammad Asif to murder him. Ghazanfar alias Kala fired with Kalashnikov upon Muhammad Asif for murdering him which hit his mouth while Awais son (sic) which hit on the left side of the chest of Muhammad Asif. Azhar and Bilal kept on firing but before it, Asif fell down headlong on the ground.
He died on the spot due to bullet fire. The accused recklessly fired due to which Painda bazaar was closed. A day before murder of Muhammad Asif, Arshad had arranged an iftar dinner at his house and instigated his brothers, sons and nephews, apart from other accused, to complete his plan that he is incapacitated for nine months and lying in the bed, his revenge will be taken before Eid.
The accused persons have committed the offence on the behest and motivation of Shahpal, Izzat Khan, sons of Ali Muhammad, Rahim Dad and Karim Dad sons of Rehmat Ullah. The occurrence is stated to be witnessed by Ghulam Ahmed son of Jalal Khan, Aftab son of Gul Zaman Khan, Muhammad Aslam son of Sayeen Khan, Muhammad Saleem son of Karim Dad and Muhammad Shafique son of Makhan Khan, apart from the others. The motive behind the occurrence is that previously a fight took place in which Arshad son of Ali Muhammad was injured. The accused has committed this offence for taking revenge of Arshad. The dead body is lying on the spot.
13. The Police Post Sarsawa entered Report No. 8 in the daily diary on 13-11-2004, sent a copy of the report for registration of case by hand of Muhabbat Ali, Constable No.100, to Police Station Kotli, where . Inspector/S.H.O. Police Station Kotli registered F.I.R. No.448 of 2004 on 13-11-2004 under sections 302, 147, 148 and 149, A.P.C.
14. The Inspector/Investigation Officer on reaching the place of occurrence took the custody of the dead-body of deceased Asif, prepared inquest report, injury-form and got the post-mortem from CMO Sarsawa. He also took into possession the blood-stained clay from the place of occurrence, one crime-empty of Kalashnikov from the place of firing of Ghazanfar, two crime empties of .44- bore gun from the point of firing by the accused Awais, four crime-empties of 7-mm rifle and five crime empties of .12-bore gun. He prepared parcels Nos.1, 2, 3 and 4. He also took into possession the blood-stained clothes of the deceased. He got prepared the site-plan from Patwari. He also arrested Ramzan, Ali Muhammad, Yasir, Awais, Mushtaq, Abid, Azhar Iqbal, Ghazanfar and Waheed.
He recovered Kalashnikov from appellant No.1 and a , 44-bore rifle from Aawis, a 7-mm rifle from Azhar Iqbal and a .12-bore rifle from Muhammad Ramzan. He also sent the recovered weapons along with crime-empties to the Forensic Science Laboratory and got the report. After necessary investigation, the allegation against Arshad, Shahpal, Izzat Khan, Karimdad and Rahimdad was not proved and they were relieved of the charge under section 169, Cr.P.C. The accused Shahbaz, Bilal, Maooz and Khalid were proceeded under section 512, Cr.P.C. The other accused persons were challaned.
15. The accused persons in their statements under section 242, Cr.P.C., denied the allegation whereupon the prosecution was ordered to produce the evidence. The trial was conducted on day to day basis. The prosecution produced P.W.2, Ghulam Hussain, P.W.3, Ghulam Ahmed, P.W.4, Aftab Ahmed, P.W.5, Muhammad Shafique, P.W.8, Makhan Khan P.W.10, Jehangir, P.W.12, Syed Shafqat Shah, CMO, P.W.13, Muhammad Kabir Patwari, P.W.14, Pervaiz Iqbal, Constable, P.W.15, Abdul Qayyum NaibMoharrar, P.W.18, Iftikhar Ahmed, Sub-Inspector Police, P.W.19, Yasin Baig, Inspector/S.H.O., P.W.20, Muhammad Jamil Khan, Inspector Police Investigation and P.W.21 Shabbir Ahmed, DSP Investigation, P.W.22, Atta-ur-Rehman, Inspector Investigation and P.W.23, Karamatullah Khan, Inspector/S.H.O. Police Station Kotli as witnesses while P.W.6, 9 and 11 were not produced as being unnecessary witnesses. After conclusion of trial, the trial Court vide judgment dated 31-3-2005 decided the case in the terms referred above.
16. The prosecution case, as borne out from F.I.Rd is that Muhammad Asif, deceased, reached in Painda Bazaar on a vehicle from Panjera bazaar. Accused Nos.5 to 13, who were armed with lethal weapons, fired upon him with intention to murder. He ran toward his house through a street when accused Ghazanfar, Awais, Ramzan, Azhar and Bilal, who had Kalashnikovs in their hands, fired upon .Him. What is alleged in the F.I.R. Is that the occurrence took place in two parts. Accused Nos.5 to 13 were in Painda Bazaar where they fired upon the deceased and Ghazanfar, Awais, Ramzan, Azhar and Bilal fired upon him when he came out of the street and he died due to firing of Ghazanfar and Awais. The crime-empties are shown to have been recovered near the place where the dead-body of deceased Asif is found lying. No crime-empty is shown to have been recovered from bazaar, the alleged place of firing by accused Nos.5 to 13.
17. The prosecution produced four eyewitnesses of the occurrence; Ghulam Hussain, P.W.2, is the complainant and father of the deceased, Ghulam Ahmed, P.W.3, is uncle of the deceased, Aftab Ahmed, P.W.4, is maternal uncle of the deceased and Muhammad Shafique, P.W.5, is son of the sister of father of the deceased. All the witnesses are inter se related and also related with the deceased. It is also an admitted fact that there is a dispute of land between Ali Muhammad, grandfather of Awais and father of Arshad, and Karim of the complainant party. A decree for possession of land in favour of Ali Muhammad was passed and the matter of execution of decree attained finality up to the Supreme Court. The decree, in spite of efforts by Ali Muhammad and intervention of district administration, couldn't be executed. The other party resisted the execution of decree and resorted to firing on Police party when the Police came to assist the delivery of possession. It is also on the record that there is civil and criminal litigation between the parties and on the matter of execution of decree Arshad, father of appellant No.2 Awais, was attacked upon and injured by the complainant party. The deceased, Asif, was one of the accused in the said case.
It is clear from the record that relations between the parties are not only strained but they are inimical towards each other. Now it is a well-settled law that if the prosecution's case rests upon the direct evidence and direct evidence is confidence-inspiring and free from doubt, the Courts do not insist upon corroboratory evidence: When the witnesses are admittedly inimical, their testimony cannot be relied upon for convicting accused respondents, a strong corroboration of evidence of such witnesses is required. The testimony of interested and inimical witnesses cannot be relied upon without independent corroboration, whether there is any corroboratory evidence or not is a material question in the case. Of course, the evidence of an interested and inimical witness is to be dealt with great care and caution, mere relationship of witnesses is not sufficient to discredit the testimony of witnesses otherwise found true. In the case reported as Mehtab Khan v.
The State (PLD 1079 SC (AJ&K) 23), while dealing with the question of appreciation of evidence, 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 bloodfeuds 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 convictions, especially against the background of long standing feuds leading to somewhat similar incidents in the past."
18. Although reappraisal of evidence is not the function of this Court but this Court does examine the evidence only to satisfy that there has been proper appreciation of evidence and no gross misreading or non-reading of evidence has been committed by the trial Court or the first appellate Court. It is on the record that there is civil and criminal litigation between the parties. The complainant in the F.I.R. Alleged that motive for murder of the deceased is incident of fight where Arshad, father of appellant No.2, Awais and son of Ali Muhammad was injured and disabled. ,He instigated his relatives to take revenge of his disability. The motive is a double-edged weapon which can go either way. The complainant due to enmity can falsely implicate the accused and accused can commit a crime due to the said motive. According to the version of the accused, which although has not been proved according to the trial Court and the Shariat Court, in the day, time one Yasir son of Ramzan, accused, of the accused party was beaten by the complainant party and they filed a report of said incident at Police Post Sarsawa. Some of the accused were present at Police Post Sarsawa, when the incident of murder took place in their absence. The case of the prosecution as borne out from F.I.R. Is that when deceased Asif reached Painda Bazaar, he was attacked by accused Nos.5 to 13 and when he: ran towards his house and reached in open place out of the street, two accused-appellants and others fired upon him. The defence in the cross-examination put a suggestion to the witnesses that deceased died due to firing of Nisar, meaning thereby that the defence admits the death of Asif by firing at the relevant time. If we look into the incidents,, beating of Yasir son of Ramzan, accused, by Asif and others of the complainant party, then the first incident which, according to the prosecution, took place in Painda Bazaar and second incident, which took place at the backside of Painda bazaar in open place where the deceased died due to firing, it appears that a serves of incidents took place on the fateful day and the death occurred in the last incident. How the occurrence took place, is not clear from the record.
According to the prosecution when deceased came in Painda .Bazaar, the accused were present in front of a poultry shop. Ali Muhammad raised lalkara (1.g1 ) {{URDU TEXT}} and all the accused started firing on him. The trial Court as well as the first appellate Court did not believe this part of the prosecution story and drew the conclusion that this part of the prosecution story is not proved.
The prosecution witnesses were disbelieved to the extent of firing in the bazaar. The appreciation of evidence made by the trial Court to this extent is very important' because the trial .Was concluded on day-to-day basis within three months of the occurrence and the trial Court had an opportunity to observe the demeanour of the witnesses. According to the prospection all the accused Nos.5 to 13 resorted to firing in ,bazaar. If firing took place in, bazaar, the' crime empties should have been recovered from bazaar but no. Crime empty was recovered which indicates that this part of the prosecution story is fabricated.
19. The second part of the occurrence, as stated by the prosecution witnesses, is that the deceased while running through the bazaar went towards his house and came at the open place out of the street, appellant No.1, who was hiding himself in a hut, came out and appellant No.2, who was also present there, fired upon him. The bullet fired by appellant No.2 hit him at left side of the chest which exited from back of right side of chest near shoulder blade and bullet fired by appellant No.1 hit him at the mouth. They alleged that the other three accused also fired upon the deceased but before their firing he fell on the ground and died. Ghulam Hussain, complainant, stated that all the accused who were present in bazaar, ran after Asif when he ran in the street towards the west, he along with all the witnesses also came towards him. When he reached at an open place he was fired upon by two appellants and others. Ghulam Ahmed, witness, also stated that when Asif ran towards street, he also followed him. Aftab Ahmed stated that he was offering prayer on the roof of a shop, when Asif was fired upon in bazaar. He ran towards the street and saw the occurrence from the roof of the shop. Muhammad Shafique, another eye-witness, stated that when Asif ran towards street, he along with maternal uncle Ghulam Hussain, went towards the street. -When Asif reached at the open place, the convict-appellants and others fired upon him. A critical analysis of the statements of these witnesses is indicative of the fact that the occurrence didn't take place in the manner as stated by witnesses. All the four witnesses are members of one family including father, uncle, maternal uncle and cousin of the deceased; the witnesses were present in the bazaar and when Asif alone ran towards the street, they went behind him, the natural course should have been that they should have called upon Asif to stop or at least have to accompany him. The conduct of witnesses appears to be unnatural. But the fact remains that the place of occurrence is proved from statements of all the four eyewitnesses, the recovery of blood-stained clay, the recovery of crime empties near the place where dead-body of the deceased was recovered by Police, the site- plan and above all, from the suggestion of defence put to the witnesses that the deceased was done to death by the firing of Nisar. The defence has not disputed the place of occurrence. The defence has put suggestion to the witnesses that Asif died due to the firing of Nisar, which is an admission on the part of the defence regarding the time and place of occurrence. The place of occurrence proves to be the same as alleged by the prosecution. The witnesses are interested and inimical. Their evidence I cannot be relied upon without strong corroboration.
20. The prosecution has produced the corroboratory evidence in the form of blood-stained clay collected from the place of occurrence, recovery of weapon of offence from two accused, crime empties and the report of Ballistic Expert. The medical evidence and Chemical Examiner's reports are also supportive. Corroboratory evidence doesn't mean that the statement of an interested witness is false or untrue, corroboration is insisted upon only to satisfy the mind of the Court that witnesses in the circumstances are speaking truth. It is not necessary that corroboration shall come from an independent source. It shall be of such a nature which shall confirm the statement of interested witness. In the cases reported as Muhammad Ramzan v. The State 1997 PCr.LJ 376 it has been observed as under:-- ..It is only in those cases where the witnesses are found to be interested and inimical in the sense that they have a motive to implicate the accused persons that the Court should 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. 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. The idea behind seeking extraneous support is that no innocent person is implicated."
' This view has been reiterated by this Court in another case reported as Zahir Hussain Shah v. Shah Nawaz Khan and 2 others 2007 PCr.LJ 1757 wherein it was observed as under:-- '....Before discussing the available confirmatory evidence, it would be expedient to point out as to what corroboration means, 'Corroboration' of the statement of interested witnesses does not mean that the statement of the witnesses is false or untrue. What it really means is that to accept it as wholly true it is desirable that it should have a confirmatory support. In fact when it is said that the statement of a witness needs corroboration to support it, this finding proceeds on the basis that version of P.W. Is prima facie correct but by way of precaution it needs corroboration to attain clarity."
' It was also observed in the same report in para 23 as under:- "23. It is, thus, manifest that corroboration is insisted upon only to satisfy the mind of the Court that the witnesses in the circumstances of the case are speaking truth. What facts and circumstances are sufficient to satisfy the mind of the Court about the truthful nature or otherwise of the testimony of an ocular interested witness, is a question which varies from case to case and no hard and fast rule can be formulated on the point."
' Similarly, in the case reported as Muhammad Tahir Aziz v. The State and another (2009 SCR 71), it was observed by this Court as under:-- ....As far the corroboration is concerned, it doesn't mean that 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. Corroboration can be from any circumstance satisfying the Court that the eye-witnesses have spoken truth."
21. The learned counsel for convict-appellants has challenged the report of Ballistic Expert on the ground that number of gun recovered from appellant No.2 is not entered in the Ballistic Expert's report, therefore, it cannot be relied upon. The learned counsel also disputed the recovery of weapon of offence from the accused. We have gone through the Ballistic Expert's report, recovery memos, the statement of recovery witnesses Makhan Khan, Muhammad Jehangir and Investigating Officer. The recovery to the extent of Ghazanfar has been proved. In the Ballistic Expert's report the number of gun recovered from Awais is not entered, which casts doubt on recovery of gun from Awais. It cannot be treated as corroboratory evidence. It casts serious doubt in the case to the extent of accused-appellant, Awais. It is celebrated principle of law that benefit of doubt always goes in favour of accused.
22. The defence counsel forcefully argued that there is contradiction between the oral version and medical evidence. According to the prosecution the death occurred due to firing of two appellants.
The Medico-legal Report supports the version of the prosecution that the deceased died due to firing. The Doctor appeared in the Court and stated that the death occurred due to the firing. The objection of the counsel for the appellants that according to the eye-witnesses two appellants fired from a distance of 35/40 yards but the Doctor stated that the victim was fired upon from 40/50 and 35/40 feet. It may be observed that eye-witnesses have stated that two appellants resorted to firing and their bullets hit the deceased. The Doctor confirmed that the death occurred due to firing. The ordinary village-folk cannot be expected to describe accurate distance in feet or yards. Similarly the Doctor, who is an expert in his field, is expected to describe the accurate distance, if there are marks of burning or charring on the body or clothes of the deceased and if there is no burning or charring, the Doctor can assess the distance after examining the exit wound.
He, is not expected to describe the exact distance. There is no contradiction between the oral and medical evidence. The medical evidence is supportive. It is in the nature of corroboratory evidence.
In the case reported as Muhammad Younas v. The State (1995 SCR 344) it was observed as under:- - "So far as the alleged contradiction between contents of site plan and the statements, of eye- witnesses regarding the points from where they had seen the occurrence is concerned, these are of minor nature and immaterial. Besides, the evidence of a witnesses cannot be measured according to a mathematical formula. Even a literate witness can make a mistake while giving correct direction of the point in relation to an assailant and victim of crime. The probative force of testimony of an eye witness in a criminal case depends upon overall effect it creates in the mind of the Court; the minor discrepancies which may crop up in the statement 'of a witness due to lack of knowledge or power of its perception do not demolish the prosecution case."
' Similarly, in the case reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 it has been observed as under:-- "9. The finding of the Shariat Court that there are contradictions between the medical evidence and the eye-witnesses is also not correct. According to the finding of the trial Court, the fire which caused death of Fazal-ur-Rehman was fired from a close range. The site plan shows that at the time of fire, the distance 'between the assailant and the deceased was eleven feet. According to medical jurisprudence, the burning of the clothes and blackening may be present if the gun is fired from a distance of about three feet or less. After subtracting the length of barrel of the gun and its butt, which may be about 5/6 feet, the remaining distance between the muzzle of the gun is more or less remains only about 5/6 feet; the difference of 2/3 feet is negligible as the same may be due to wrong perception of the witnesses. Thus, there is no material contradiction in the statements of eye-witnesses and medical evidence. It may be observed that it is not possible for the witnesses in such a case to give the precise distance; there is always a possibility of error of few feet or yards."
23. Another argument of the counsel for the accused-appellants is that witnesses are not only related and interested but they are also chance witnesses and testimony of chance witnesses cannot be relied upon, The occurrence is stated to be of the month of Ramadan. All the witnesses are residents of locality. The occurrence took place near the bazaar. It cannot be said that the witnesses were present in the bazaar by chance. The presence of village folk in a bazaar of locality is natural. Even otherwise the testimony of chance witnesses is to be scrutinized with great care and caution which requires independent corroboration. In the case reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 was observed, by this Court as under:-- ' It is correct that the testimony of a chance witness should be carefully scrutinized but that doesn't mean that his testimony should be acted upon only if the same is corroborated in independent evidence."
' It was also observed by this Court while deciding the case reported as Muhammad Khurshid Khan v. Muhammad Basharat another (PLD 2007 SC (AJK) 27 as under:-- "21. It is pertinent to note that while appreciating the evidence of a chance witness, the Court should be cautious and it should ensure that the statement of chance witness finds corroboration from other evidence. The evidence of chance witness should be scrutinised very carefully but it does not mean that his testimony should be acted upon only if the same is corroborated by independent evidence. If the testimony of chance witness finds corroboration from any other circumstance or from any other evidence in the form of recoveries and medical evidence, then that case be relied upon."
24. We have considered the argument of the learned counsel for the complainant that the deceased died due to firing of Awais. Firstly he was not a minor at the time of occurrence.
Alternately if he was minor, then too, if sentence of qisas {{URDU TEXT}} ( c.fl473 ) {{URDU TEXT}} cannot be awarded to him under section 306, he is liable to death as ta'zeer ( ). {{URDU TEXT}} We respectfully disagree with the learned counsel for the complainant. The provisions of sections 306 and 308, A.P.C., are clear. Under section 306 A.P.C., qatl-e-amd ( Ay ) {{URDU TEXT}} is not liable to qisas when an offender is minor or insane. To prove the age of Awais and to prove that he is a minor, his father produced registration certificate issued by National Database & Registration Authority (Exh.DB), school certificate (Exh.DC), copy of nikah-nama of marriage ceremony of the father of accused, (Exh.DR) and birth certificate of the accused (Exh.DQ). From perusal of all the four documents the trial Court and the first appellate Court reached to the conclusion that the accused was of the age of 13 years at the time of occurrence and was minor. For our own' satisfaction we have ourselves perused the documents and reached to the same conclusion that the accused Awais was of the age of 13 years and was minor at the time of occurrence. He couldn't be awarded sentence of death as qisas. Now the question arises that if the death sentence as qisas under section 306, A.P.C., cannot be awarded, what other sentence is to be imposed on the accused. Section 308, A.P.C.. Deals with the situation when punishment of qatl-e-amd is not liable to qisas. It will be useful to reproduce the same in verbatim, which reads as under: "308. Punishment in qatl-e-amd not liable to qisas, etc.---(1) Where an offender guilty of Qatl- eamd is not liable to qisas under section 306 or the qisas is not enforceable under clause (c) of section 307, he shall be liable to diyyat: ' Provided that, where the offender is minor or insane, diyyat shall be payable either from his property or by such person as may be determined by the Court: ' Provided further that where at the time of committing of qatl-e-amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realise the consequences of his act, he may also be punished with imprisonment of either description for term which may extend to twenty-five years as ta'zir: ' Provided further that where the qisas is not enforceable under clause (c) of section 307 the offender shall be liable to diyyat only if there is any wali other than offender and if there is no wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to twenty-five years as ta'zir."
(2) Notwithstanding anything contained in subsection (l ), {{URDU TEXT}} The Court having regard to the facts and circumstances of the case in addition to the punishment of diyyat, may punish the offender with imprisonment of either description for a term which may extend to twenty-five years, as ta'zir."
' A perusal of subsection (1) of section 308, A.P.C., leaves no doubt that when an accused is not liable to qisas under section 306, A.P.C., he shall be liable to diyyat (z-rd). {{URDU TEXT}} If an offence is proved against the accused and he cannot be convicted to qisas under section 306, A.P.C., being a minor, he shall be liable to pay diyyat. No other sentence can be awarded. Of course, under second proviso of the section, if the accused has attained sufficient maturity to realize the consequences of the act, he can be convicted to 25 years imprisonment. Under subsection (2) the Court has power to award any other sentence which may extend to twenty-five years as ta'zir apart from diyyat. Since we have come to the conclusion from the report of Ballistic Expert that recovery of gun from the appellant Awais is doubtful and it is not corroborative, a remarkable doubt appears in the case to his extent, he cannot be awarded any sentence even under section 308, A.P.C. The appeal of the complainant to his extent merits dismissal.
25. In the light of arguments of the counsel for the complainant, we have also perused the whole record. The acquittal order passed by the trial Court and upheld by the Shariat Court to the extent of remaining accused-respondents is perfectly legal in accordance with the rule of administration of criminal justice, the same is maintained. The accused respondents have double presumption of innocence firstly on the ground that every accused is presumed to be innocent unless convicted and secondly on the ground of acquittal order by two Courts. The appeal to their extent merits dismissal. In the case reported as Liaqat Ali and 2 others v. Raja Shahid Nawaz and 2 others 2007 PCr.LJ 246 it has been observed as under:-- "2. Every accused person is supposed to be innocent till the time the offence attributed to him is proved by evidence. When an accused person is acquitted by a Court of law then in that case he is entitled to double presumption of innocence in his favour."
' After perusal of the judgment of two Courts below and appraisal of evidence we have come to the conclusion that although the eye-witnesses are not only related, they are also inimical towards the accused but their evidence is corroborated by the other evidence to the extent of appellant Ghazanfar alias Kala. We believe the same to the extent of Ghazanfar and the evidence to the extent of appellant Awais is not corroborated by other circumstances. While extending benefit of doubt to the appellant Awais, Appeal No.65 of 2009 to his extent is accepted. His conviction is set aside while the appeal to the extent of Ghazanfar alias Kala merits dismissal. Appeal No.62 of 2009 titled Ghulam Hussain v. Ghazanfar and others is dismissed.