MOHAMMAD AZAM KHAN, CJ. --- The District Criminal Court vide judgment dated 16.8.2007 convicted and sentenced the appellant to life imprisonment (25 years' rigorous imprisonment) as Tazir under Section 302(b), APC and two years' rigorous imprisonment alongwith fine of Rs, 5000/- under Section 13 of the Arms Act, 1965. In case of non-payment of fine, he was to undergo two months' rigorous imprisonment. The appellant was also ordered to pay compensation to the tune of half million rupees under Section 544-A, Cr.P.C. to the legal heirs of deceased. He was to further undergo six months' rigorous imprisonment in case of non-payment of compensation. The convict-appellant was also extended the benefit of Section 382-B, Cr.P.C. Two appeals; one by the convict-appellant herein and the other by the complainant were filed in the Shariat Court. The Shariat Court dismissed the appeal filed by the appellant and accepted the one filed by the complainant and enhanced the sentence of life imprisonment (25 years' imprisonment) to death as Qisas. The other sentences awarded by the Trial Court were maintained.
2. A case under Sections 324 and 337, APC was registered at Police Station Danna, District Muzaffarabad on 25th July, 2005, at 3:45 p.m. on a written report lodged by Raja Ashfaque Hussain, respondent No,
2. The application was presented to S.H.O. Police Station Danna, Hassan Wazir Afridi, at 3:45 p.m. It was alleged in the application that on 25th July, 2005, Muslim Youth Wing, Danna Kacheeli, had arranged a reception in the honour of Minister for Food, Azad Government of the State of Jammu and Kashmir. A large number of people from Constituency No, 4 participated.
Apart from complainant, his real first cousin, Raja Junaid Zafar s/o Raja Zafar Hussain Khan, caste Khakha Rajput, r/o Kacheeli, his younger brother, Raja Yasir and other persons belonging to tribe also participated. At the conclusion of ceremony, at about 2:45 p.m., when the participants were returning to their homes, the complainant, his cousin Junaid Zafar, his brother Yasir and Tahir Seemab s/o Raja Seemab Khan, Raja Iftikhar Farid s/o Raja Farid Khan, castes Khakha, residents of Kacheeli, reached on the road to go back to their homes. In the meantime Kashif Maqsood alias Chappa, s/o Raja Maqsood, caste Kh. Rajput, r/o Danna, having 30-bore loaded pistol in his and, came there and asked Junaid Zafar that he had asked him not to hoist the flag of M.S.F. in Danna Bazar and participate in the function of Food Minister for making it successful. He further asked him "You had also threatened to make the function successful and hoist the flag of M.S.F". Upon this, Junaid Zafar said, "the function has become successful and the flags have been hoisted, what you want now?" Whereupon Kashif Maqsood said that he was waiting for him that as soon as he would come back, he would teach him a lesson. He fired upon Junaid Zafar with intention to kill, who got injured and the accused ran away from the spot. The occurrence was witnessed by other people present on the spot.
3. The S.H.O. forwarded the application with a letter Incharge Police Station Danna for registration of case under Sections 324 and 337, A.P.C. Upon receipt of application, the Head Constable registered FIR. No, 22 of 2005 for the offences under Sections 324 and 337, APC. The injured died later on due to afore-mentioned injury in the hospital whereupon Section 302, APC was added. The police recovered an un-licenced 30-bore pistol from the appellant, whereupon on the report of S.H.O. a case under Section 13 of the Arms Act, 1965, was registered against the convict-appellant. After necessary proceedings, the challan was presented against the convict-appellant on 28th September, 2005 under Section 302, APC and Section 13 of the Arms Act, 1965. The District Criminal Court, Muzaffarabad, vide judgment dated 22nd June, 2006 convicted the appellant to the sentences as indicated above. Two appeals were filed; one by the legal heirs of deceased and the other by the convict-appellant in the Shariat Court of Azad Jammu and Kashmir. The appeal filed by the convict-appellant was dismissed, while the appeal filed by the complainant/legal heirs was accepted and the sentence of life imprisonment (25 years' rigorous imprisonment) was converted into sentence of death as Qisas by the Shariat Court vide impugned judgment on 15th April, 2010.
4. Mr. Mushtaq Ahmed Janjua, the learned counsel for the convict-appellant, submitted that the judgment of the Shariat Court is against law and facts of the case. The prosecution failed to prove its case beyond reasonable doubt. There are inherent defects in the prosecution case which go to the root of the case. He submitted that the origin of fight is shrouded in mystery. The complainant alleged that after conclusion of meeting, he alongwith his cousin Junaid Zafar, brother Yasir, Tahir Seemab and Raja Iftikhar Farid reached on the road. The convict-appellant, Kashif Maqsood, while having a 30-bore loaded pistol in his hand came there and fired upon Junaid Zafar, while the S.H.O.
Police station, Danna, in his Court statement has contradicted the version and narrated a different story which casts serious doubt in the prosecution case. The leaned counsel argued that the witnesses are related and partisan and their testimony is not confidence inspiring. The occurrence is also witnessed by the other people present on the place of occurrence. Independent witnesses have not been produced by the prosecution. Only the interested and related witnesses have been produced by the prosecution. When the independent witnesses are not produced and only related witnesses are produced, then the case becomes doubtful. In such circumstances the related witnesses cannot be relied upon. The conviction cannot be based upon the testimony of such related witnesses. He referred to the last words of the written application which are as under:-- {{URDU TEXT}} He referred to the statements of Ashfaque and Tahir Seemab, witnesses, who have stated that at the time of occurrence some fifty/sixty people were present. He also referred to the statement of Yasir Maqbool, witness, who in his Court statement stated that at the time of occurrence, the drivers of the vehicles standing on the road were also present. The learned counsel contended. that Raja Ashfaque and Iftikhar Farid, alleged eye-witnesses, are first cousins of the deceased and are inter see related. Tahir Seemab's sister is married to Ahtisham Zafar, real brother of deceased.
Relationship is admitted by the witnesses. He referred to a case reported as Muhammad Yousaf v.
Tariq Mehmood and another [2008 SCR 1]. The learned counsel argued that the occurrence is politically motivated. The case of prosecution itself is that a reception was arranged in the honour of Minister for Food and the members of complainant party are supporters of the Minister for Food.
In fact the occurrence took place at the place of reception and not at the place alleged by the prosecution. He has been falsely implicated under the directions of Food Minister and that is why none of the independent witnesses has been produced in the case by the prosecution.
5. The learned counsel for the convict-appellant argued that the investigation has been conducted in a partial manner. All the recoveries are fake and fabricated. In the recovery memo. the weapon of offence, pistol, is shown to have been recovered on 29th July, 2005, whereas Raja Mehmood Ahmed, Raja Sajjad Ahmed, witnesses and Hassan Wazir Afridi, investigating officer, stated in their Court statements that the recovery was effected on the day of occurrence. The learned counsel further argued that in column No, 1 of the inquest report the place of recovery of dead-body is shown as Danna, while the witnesses, Raja Sajjad Ahmed and Raja Nadeem, who identified the dead-body, categorically stated that the deceased died in C.M.H., Muzaffarabad and the dead- body was taken into custody by the police from there. The inquest report is signed by Abdul Qayum, A.S.I., who in his Court statement denied to have prepared the same and also denied his signatures on the report. The learned counsel further submitted that mala fide in the investigation is apparent from the recovery of crime empty from the place of occurrence. In the recovery memo., the S.H.O. has shown that a crime empty of 30-bore has been recovered, while the report of Forensic Science Laboratory shows that the crime empty which was received alongwith the pistol was without "percussion cap". Percussion cap is a place where most of the identifiable data is available. When according to report of Forensic Science Laboratory the crime empty cannot be identified, how the S.H.O. entered in the recovery memo. that it is a crime empty of 30-bore pistol. It is proof of mala fide on the part of prosecution. The learned counsel further argued that the doctor stated that he handed over the crime empty and two pieces of jacket of bullet to police at the time of post-mortem, while A.S.I., Abdul Qayum, states that he had taken in custody the empty on 4th August, 2005. The learned counsel referred to the post-mortem report. He contended that according to the prosecution the appellant fired only once, but three entry wounds on the chest of deceased are shown in the post-mortem report. This negates the prosecution version that it was the convict-appellant, who fired upon the deceased. This is a clear proof that the occurrence took place at any other place and also in some other manner. He explained that the post-mortem report, when read together with the report of Arms Expert, clearly shows that the prosecution has fabricated a false case against the convict-appellant. The cumulative effect of whole evidence is that the prosecution failed to prove its case beyond reasonable doubt.
6. The learned counsel for the convict-appellant also submitted that firstly the evidence on record is of such kind on the basis of which the appellant cannot be convicted. It was argued by the learned counsel that Muhammad Farid, witness, has not been found Aadil in purgation (urdu), therefore, the sentence of Qisas cannot be granted to the appellant. The learned counsel attacked upon the statements of witnesses and contended that the statements of witnesses are stereo type.
The evidence is not confidence inspiring. The case is not proved beyond reasonable doubt against the convict-appellant, therefore, the sentence of Qisas is not warranted and the convict-appellant is entitled to acquittal. Alternately the learned counsel argued that the convict-appellant is of young age. Young age can be considered a ground for expectancy of life. He referred to the cases reported as Muhammad Khurshid Khan v. Muhammad Basharat & another [2007 SCR 1] and Muhammad Yaqoob and 4 others v. The State and another 2009 SCR 104].
7. The learned counsel for the convict-appellant also referred to the conduct of appellant in support of argument for expectancy of life. He contended that during the earthquake of 8th October, 2005, the Central Jail Muzaffarabad was destroyed. Some of the pisoners died In the jail and some of them absconded. The convict-appellant was also detained there, who was injured in the incident. He went for treatment and thereafter voluntarily appeared in the Court and surrendered himself. This conduct of the convict-appellant shows that he is a noble and innocent person who has been enroped in a false case. On the ground of noble conduct he is entitled to lesser punishment. The learned counsel further argued that in the first round of trial, the Trial Court awarded death sentence to the appellant. The Shariat Court accepted the appeal and remanded the case to the Trial Court. In the second round, the Trial Court awarded life imprisonment (25 years' rigorous imprisonment). The awarding of 25 years' rigorous imprisonment and setting aside of death sentence in the first round by the Shariat Court has created an expectancy of life in favour of appellant. When in second round, the Trial Court has granted him expectancy of life, he is entitled to lesser punishment. He referred to the cases reported as Muhammad Farooq v. The State [PLD 1986 SC (AJ&K) 52] and Muhammad Yusuf v. Tariq Mehmood & another [2008 SCR 1].
8. While controverting the arguments, Raja Muhammad Hanif Khan, the learned counsel for the complainant, argued that the prosecution has successfully proved its case beyond reasonable doubt. There are four eye-witnesses of the occurrence, who fully support the prosecution version.
Iftikhar Farid and Tahir Seemab are independent witnesses. They have no relationship with the deceased. The witnesses independent and have been found Aadil in purgation (urdu). They have no motive to falsely implicate the convict-appellant in the case. The sentence of Qisas has correctly been awarded on the statements of these witnesses. The learned counsel forcefully argued that the occurrence is of broad day light. The parties are known to each other. There is no dispute of identity or substitution of convict.
9. The learned counsel for the complainant further argued that the investigation has been conducted in a fair manner. The learned closely for the appellant has pointed out minor discrepancies which cannot destroy the prosecution case as a whole. While explaining three entry wounds on the body of deceased, the learned counsel argued that the weapon used is 30 bore pistol and the bullets used in the pistol are jacketed bullets. Jacket forms the tip of bullet which is often broken in pieces when fired from pistol. The Doctor has categorically written in the postmortem report that one bullet and two pieces of jacket entered in the body of deceased. The learned counsel referred to pages 263 and 267 of the Medical Jurisprudence by Parekh for explaining the jacketed bullet. The learned counsel also argued that the instant case is one of direct evidence. The witnesses are confidence inspiring. From the statements of witnesses it is proved that the convict-appellant is fully connected with the crime. The corroboratory evidence is not required in presence of direct evidence. Minor discrepancies cannot be considered for discarding the prosecution evidence. He also referred to cases reported as Liaqat Hussain and another v. Ulfat Khan and another 07 SCR 39], Javed Azam and 2 others v. Muhammae and others [PLJ 1997 SC (AJK) 226] and Noor Muhammad v. The State and another [2005 SCMR 1958].
In the case titled Liaqat Hussain and another v. Mai Khan and another [2007 SCR 39] it was observed that where the ocular testimony is reliable and satisfactory then the conviction cah be recorded merely on such evidence alone without any further corroboratnon. It was further observed that no hard and fast rule can be laid down for appreciation of evidence. Mere fact that the witnesses are inter see related to the deceased is not sufficient to discard their testimony all together,if such witnesses are otherwise found to be truthful. It was further observed that substitution of accused is a rare phenomenon. If the defence alleges substitution of accused then it is the basic duty of the defence to lay foundation to proving it.
In another case reported as Javed Azam and 2 others v. Muhammad Saleem and others [PLJ 1997 SC (AJK)- 226.
It was observed that the entire case of prosecution depends upon the account of eye-witnesses and not upon the circumstantial or corroborative evidence. In presence of eyewitnesses, two of whom are injured and others having personally seen the accused attacking upon complainant party, the opinions of Firearm Expert or Ballistic Expert matter least. The opinions of Firearm Expert, Ballistic Expert and Chemical Examiner are necessary in the case when the occurrence is not witnessed by the eye-witnesses and the case entirely depends upon the circumstantial evidence.
In the case reported as Noor Muhammad v. The State and another [2005 SCMR 1958] while dealing with the report of Ballistic Expert it was observed that the opinion formed by the Ballistic Expert, by no means, is sacrosanct and the possibility of error in the opinion that the empties/bullets secured from the scene of incident were fired from seven different arms cannot be ruled out. No hard and fast rule can be laid down as regards the weight to be given to Expert report. In a case which otherwise stands proved against the accused by reliable, truthful and confidence inspiring evidence, the report of Expert loses its value.
10. The learned counsel also argued that young age itself is not sufficient for awarding lesser punishment. The deceased was also a young man. The learned counsel referred to a case titled Asif All v. The State [1998 P.Cr.LJ. 1708]. The learned counsel contended that there is no scope for expectancy of life in Islamic law. Under the provisions of Islamic Jurisprudence the legal heirs of deceased may compromise with the accused, but lesser punishment cannot be awarded on the ground that there is expectancy of life. He referred to the cases titled Raheem Bakhsh v. Abdul Subhan and another [1999 SCMR 1190] and Faiz Ali Shah v. The State [PLD 1989 SC (AJK) 61].
11. The learned counsel also submitted that mere inter se relationship of witnesses is no ground for discarding their evidence. He relied upon a case' titled Mehtab Khan v.
The State [PLD 1979 SC (AJ&K) 23] wherein it was observed that mere fact that the witnesses are inter see related to the deceased is not sufficient to discard their testimony out rightly if such witnesses are otherwise found to be witnesses of truth. If the witnesses are found to be interested and inimical in a sense of having a motive to falsely implicate innocent persons from the other party, then the Court shall be on guard and cautiously look for some corroboration.
12. The learned counsel further submitted that it is not necessary to produce two independent witnesses of recovery of weapon of offence. The investigating officer who recovered the weapon of offence on the pointation of accused is as competent witness as any other witness. In support of this assertion he referred to a case reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others [2001 P.Cr.LJ. 524] wherein it was observed that mere relationship was no ground for discarding the testimony of eye-witnesses if they are otherwise confidence inspiring particularly when it is supported by medical evidence.
13. It was also submitted by the learned counsel that the reports of Forensic Science Laboratory and Chemical Examiner alongwith the recoveries are corroboratory evidence. Corroboratory evidence is required when direct evidence is not available. When direct evidence is available, the corroboratory evidence is not required. In support of this assertion he referred to a case reported as Javed Azam & others v. Muhammad Saleem and others [PLJ 1997 SC (AJK) 226].
14. The learned counsel further submitted that if the statement of eye-witnesses is corroborated by medical evidence i,e, post-mortem report, no other corroboration is required. In this regard he relied upon a case reported as Ali Imran v. The State [2002 P.Cr.LJ.1856] wherein it was held that when the statements of eye-witnesses are corroborated by medical evidence, no other corroboration is required.
15. The learned counsel also argued that the defence has not cross-examined the prosecution witnesses on material points. If the witnesses are not cross-examined on material points, then that part of evidence is deemed to be admitted as correct. In this regard he referred to a case "reported as Sher Dil and others v. The State and others [2003 YLR 110] wherein it is laid down that if a portion of statement of witnesses goes against a party and the party fails to cross-examine the witness on that point, then that portion of statement of witness is deemed to be admitted as correct.
16. The learned counsel advanced another argument that the prosecution has alleged specific motive in the case and all the witnesses have proved motive in their statements. From the trend of cross-examination, the motive is admitted. He referred to a case titled Abdul Rashid and 3 others v.
Abdul Ghaffar and 5 others [2001 P.Cr.L.J. 524]. In the referred case it is observed that if the prosecution alleges a specific motive and witnesses prove the same, motive shall be relied upon for deciding the case.
17. The learned counsel advanced another argument that the prosecution is not bound to produce all the witnesses. If it is entered in the F.I.R. that there were other witnesses present on the spot then too the prosecution was not bound to produce all witnesses. He referred to a case reported as Amrood Khan v. The State [2002 SCMR 1568] which lays down the law that the prosecution is not bound to produce all the witnesses.
18. The learned counsel also argued that where the standard of evidence laid down by law is fulfilled then it is a case of maximum punishment. The appellant has correctly been sentenced to death as Quasi that Section 302(a), AFC. In this respect he referred case reported as Sardar Khan v.
The State [1998 SCMR 1823]. The refferd case lays down correct law that when the criterion of evidence, as laid down in Islam, is complete and if two male eye- witnesses state against the accused, then the sentence of Qisas under Section 302(a), PC has to be enforced.
19.Lastly the learned counsel argued that where from the standard of evidence the case falls in Qisas, there is no question of expectancy of life. He referred to the case reported as Mehtab Khan v.
The State [PLD 1979 SC (AJK) 23]. In the referred case it is laid down that if the criterion for awarding of sentence of Qisas is complete, then such sentence is the requirement of law.
20. Ch. Shokat Aziz, the learned Additional Advocate-General adopted the arguments advanced by Raja Muhammad Hanif Khan, the learned counsel for the complainant. He further argued that the convict-appellant is nominated in the F.I.R. which was promptly lodged without any delay. There are four eye-witnesses of occurrence, who fully corroborate the prosecution version in their evidence. Two Courts have convicted the accused, while relying upon the evidence. The appeal merits dismissal.
21. We have heard the learned counsel for the parties and perused the record. F.I.R. No, 23/2005 was registered at police Station Danna at 3:45 p.m. on a written application presented by Raja Ishfaq Hussain to S.H.O. at the place of occurrence. It is alleged in the application that when the complainant alongwith his cousin Junaid Zaffar, brother Yasir, Tahir Seemab, lftikhar Fareed reached on the road after attending the meeting, convened in Danna College, Kashif Maqsood having a 30-bore loaded pistol came there. Kashif Maqsood asked Javed Zaffar that he had told him not to participate in the meeting of Food Minister and not to hoist the flag in bazaar, then why he hoisted the flag. Junaid Zaffar said that the meeting has become successful and flags have also been hoisted. Upon this Kashif Maqsood said that he was waiting for him and fired upon him.
The S.H.O. after receiving the application wrote a letter (urdu) on it and send the same to the Police Station for registration of case. It is alleged in the application that one bullet was fired by the convict-appellant which hit the chest of deceased.S.H.O. got recovered a crime empty of 30-bore pnstol from the place of occurrence. Later on the deceased died due to injuries in C.M.H., Muzaffarabad. The post-mortem was conducted on the same day. A.S.I., Abdul Qayyum, prepared Injury Form and inquest report. In the F.I.R. only one fire is attributed. In the injury report only one entry wound is shown on left side of the chest. In the inquest report prepared by Abdul Qayyum, A.S.I., there is also shown one entry wound on the chest of the deceased. After post-mortem, the doctor handed over the clothes of deceased to police on the same day. One entry wound each is found on the shirt and bunyan also have but the post-mortem report prepared by the doctor after the post-mortem reveals that there are three entry wounds on the chest. Relevant portion of the post-mortem report is reproduced "POST-MORTEM REPORT AK CMH MUZAFFARABAD Yearly No. on the Body ofNAME Raja Junaid Zaffar Khan FATHER'S NAME Raja Zaffar Hussain CASTE Khukha Rajpoot RESIDENCE Dunna Kacheeli SEX Male AGE 22 years DISTRICT Muzaffarabad Body brought by: ASI Abdul QayumBody identified by: Raja Sajad Haider s/o Afrasiab Thana Danna ii. Raja Nadeem Khan s/o Quresh M. Khan 1. d. mark. mole on right side of chest Whence brought: village, Thana, District Danna Kacheeli DATE AND HOUR OF Death Examination of BodyDispatch of matter to Chemical Examiner 25.7.2005 25.7.2005 Nil 15:45 hrs. in OT CMH M'abad17:55 hrs Sym ptoms observed before death: Information furnished by Police: "Bullet injury chest at 14:45 hrs. on 25.7.2005, was rushed to AK CMH, M'abad where he died immediately in O.T."
I. EXTERNAL APPEARANCE Marks of ligature on neck and dissection, etc. Condition of subject________________ stout emaciated, decomposed, etc, clothing.
Fresh stout body of a young person with . flaccid body. Rigormortis not yet ensued. Clothing consisted white shirt with lines, bunyan and khaki pent. Shirt and bunyan were blood-stained and had bullet tears.
Wounds, bruise, position size, nature
(i) 1" x 1" penetrating wound on It. side of chest 11/2" from it. Sternal boarder.
(ii) 0.5 x 0.5 cm. penetrating wound 1" lateral to sternal boarder (It.) 1/2" below and medial to injury No, (i).
(iii) 0.25 x 0.25 c.m. penetrating wound in right upper part of abdomen 1/2" below rt. subcostal area.
Injuries (i) and (iii) resulted from broken pieces of bullet i,e, injury No, (ii)."
The cause of death shown in the post-mortem report is as under:-- "The cause of death was bullet injury in left chest causing damage to wall of the heart and left lung which resulted into acute profuse bleeding leading to haemorrhagic shock and death of the victim.
Range of the fire seemed to be between 5-8 feet and the direction of the fire was straight from front to back."
In column No, 1 of the inquest report, Abdul Qayyum, A.S.I., has entered Danna as the place from where the dead-body was recovered. The time of death is recorded as 2:45 pm. and in column No, 10 only one entry wound is shown on the left side of chest of the deceased. The cause of death is shown as fire by 30-bore pistol. Hassan Wazir Afridi, S.H.O., who sent letter alongwith application for registration of F.I.R. and conducted major part of investigation, stated in Court that on 25th July, 2005, a meeting in the honour of Raja Abdul Qayyum, Minister, was convened in Danna College ground. At the conclusion of meeting, after 2:00 p.m. people were going back to their homes. He had summoned police force from Kohala Choki and Kullian Chattar Choki. After being relieved of the meeting he reached in bazaar which is at a few paces from the College. He heard the voice of a fire and it was told that Zabir Maqsood has fired upon Junaid Zaffar. In the meantime the complainant approached him. He inquired from him who told that he was present on the place of occurrence. Hot words were exchanged between Zabir Maqsood and Junaid Zaffar in respect of meeting. Previously there was also tension between them. Junaid Zaffar was supporting Raja Abdul Qayyum and accused was opposing him. In the meantime the accused fired upon Junaid Zaffar and ran away from the place of occurrence. The complainant presented him a written application which was sent to police station alongwith a letter (urdu). The version of complainant which he told to the S.H.O. verbally contradicts the written version. On the pointation of complainant he recovered a crime empty of 30-bore pistol from the place of occurrence and also prepared its recovery memo. In the night time he arrested the accused and recovered 30-bore pistol from him. Junaid Zaffar was in injured condition. He sent Abdul Qayyum, A.S.I. with him for necessary proceedings.
There was tension between two parties on the spot. In the cross-examination this witness stated that percussion cap of the crime empty was not present, therefore, he couldn't describe the bore of weapon. The crime empty alongwith the pistol was sent to Ballistic Expert. The Ballistic Expert reported that the crime empty is without percussion cap, which is the place where there is most of the identifiable data. For proper appreciation we deem it necessary to reproduce relevant portion of the report of Forensic Science Libratory which is as under:--- "DESCRIPTION OF ARTICLES
1. 'One crime empty of 30 bore now marked as C (without percussion cap).
2. (i) One inner part of the jacketed bullet, (ii) Two pieces of jacket of the jacketed bullet.
3. One pistol of 30 bore No, 7248 FF now body signed, alleged to have been recovered from the accused Kashif Maqsood.
OPINION The examination of the case has revealed as under:--
1. The crime empty of 30 bore marked as 'C' is without percussion cap. (Percussion cap is the place where most of the identifiable data is available.) As such the crime empty does not contain points of identification sufficient enough to hold comparison with the test empties prepared from the pistol of 30 bore No, 7248 FF body signed. Therefore nothing can be opined as to whether or not the said empty was fired from the pistol of 30 bore No, 7248 FF body signed.
2. The inner part and the two pieces of the jacket are the fragments of the jacketed bullets which are fired in rifled bore weapons and do not have any proper formation, size and points of identification from examination point of view to ascertain their exact bore and kind of weapon used.
3. The pistol of 30 bore No, 7248 FF body signed is in working order and fires Semi-Automatically in its present condition. Note: Two test empties are being sent in the parcel of the pistol."
22. The case is of direct evidence. In the F.I.R., four eye-witnesses were nominated, who appeared as witnesses in support of prosecution case. It is now a well-settled law that when the entire prosecution case rests upon the direct evidence of witnesses, who have seen the accused committing the crime, there is no requirement of corroboration, like the report of Ballistic Expert or post-mortem report, provided that the testimony of witnesses is confidence inspiring.
Corroboration from the report of Ballistic Expert and the post-mortem report is required when the case is not of direct evidence and rests upon the circumstantial evidence. In a case titled Javaid Azam v. Muhammad Saleem and others [PLJ 1997 SC (AJK) 226] it was observed as under:-- "17. The entire case of the prosecution depends upon the eye-witnesses account not upon the circumstantial or corroborative evidence. In the presence of witnesses two of whom are injured and others having personally seen the accused attacking upon the complainant party, the opinion of the Firearms Expert or Ballistic Expert etc. matters least. The opinion of Fire-arms Experts, Ballistic Expert and Chemical Examiners is necessary in the case when the occurrence is not witnessed by the eye-witnesses and the case entirely depends upon circumstantial evidence. The opinions and reports of these experts are always to support or corroborate the other evidence if direct evidence is not available. In the case in hand, the occurrence did not require any corroboration as the direct evidence itself was available. It was the case of broad day light firing in the very busy Chowk witnessed by the prosecution witnesses and all others, who could be produced in defence by the respondents if the matter was otherwise. The following dictum from the case of Muhammad Hanif v. The State [PLJ 1982 SC (AJK) 212] may be advantageously reproduced:--- '10. Due consideration was given to the arguments. Whether a witness is to be believed depends on the circumstances and facts of each case. Assessment of interested and partisan evidence is, of course, a difficult matter which engaged the attention of superior Courts time and again. The first thing which is of paramount importance is to see whether the witness is a natural witness and if the Courts come to the conclusion that the witness is a natural witness then in the case of testimony of such a witness, law does not make incumbent upon the Courts to ask for corroboration before relying on the testimony of such a witness. ,Evidence of such a witness, however, is required to be scrutinized with great care and caution in order to eliminate any possibility of doubt and Courts must also determine as to whether or not he is a witness on whose words implicit can be placed without independent corroboration. Nevertheless, no inflexible rule can be formulated in this behalf. In such case the evidence of witnesses has to be evaluated on merits and if it rings true in the context and circumstances of the case free from any fault and uncontradicted by any cogent circumstances emerging from the case, it must be relied upon as the basis for conviction without any corroboration. In a case where the statement of an interested but natural witness can be believed with implicit faith without difficulty, corroboration is not to be insisted upon as a rule of law or as a rule of prudence and evidence will not be rejected merely because the witnesses are related with the deceased and inimical towards the accused. The safe administration of criminal justice demands that Court should draw its own inference flowing from evidence and circumstances and not be deterred by reason of incompleteness of tale given by each party. It, therefore, follows that where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence alone without any further corroboration. Here in this case due scrutiny of the statements of eyewitnesses of truth and conviction can safely be recorded on the basis of their evidence without any further corroboration."
23. The defence has challenged the testimony of eye-witnesses on the ground that independent witnesses were available on the place of occurrence. Only related witnesses have been produced and independent witnesses have been left. It is on record that the witnesses are related to the deceased and also inter see related. The complainant and the S.H.O. admit that the other witnesses were present at the place of occurrence but none of the independent witnesses has been cited as a witness or produced by the prosecution. We also agree with the contention of the learned counsel for the prosecution that the prosecution is not bound to produce each and every witness but in a murder case where independent witnesses are present and they are not produced but only related witnesses are produced, the testimony of such witnesses has to be scrutinized with great care and caution. In an unreported case of this Court titled Qadir Bakhsh v. The State and others [Criminal Appeal No, 33 of 2011, decided on 18.1.2013] it was observed as under- ..It is a celebrated principle of the appreciation of evidence that mere relationship of witnesses inter se or to the deceased is not sufficient to discredit outrightly their testimony if otherwise such witnesses are found to be the witnesses of truth but if the independent and impartial witnesses are available and they are not produced and withheld and only the related witnesses, whose testimony is not confidence inspiring, are produced, the testimony of such witnesses cannot be relied upon without independent corroboration and the corroboration shall be of such a standard which tends to satisfy the Court that the witnesses have spoken the truth."
24. It is an admitted position that a public meeting of the Minister for Food was held in Danna College ground. According to prosecution, the complainant party participated in the meeting and the convict-appellant was opposing the same. In this situation the testimony of witnesses requires scrutiny with caution. The statement of S.H.O. that the complainant told him that some altercation took place between Zabir Maqsood and Junaid Zafar; one was opposing Raja Abdul Qayyum while the other was supporting him and there were also previous strained relations between the parties, casts serious doubt in prosecution version that the occurrence took place in pre-planned manner.
There appears no premeditation. The origin of fight appears to be shrouded in mystery. It is against the prudence that when the complainant party convened a successful meeting, after that the accused alone shall come at the place of occurrence, stop the organizer of the meeting and commit crime while saying that he had forbidden him not to convene the meeting. The investigation appears to have been conducted in an illegal and partisan manner and the S.H.O. fabricated the facts. He recovered crime empty of 30-bore pistol soon after the occurrence on the pointation of the complainant. The Forensic Science Laboratory report says that the percussion cap of crime empty was not present. There was no data on the crime empty for determining the bore of the crime empty. S.H.O. himself admitted in the Court statement that the percussion cap of the crime empty was not present. When, the percussion cap was not present on the bullet, then how S.H.O. could say that it is crime empty of 30-bore. The recovery of crime empty is doubtful.
25. All the prosecution witnesses have stated that the convict-appellant fired only one bullet. In the injury report and inquest report, there is only one entry wound on the left side of chest of the deceased. The clothes of deceased, shirt and bunyan, also have one entry wound but the post- mortem report shows that there are three entry wounds; two on chest and one on abdomen of deceased. Ordinarily when the case is one of direct evidence and four eye-witnesses state that the convict-appellant fired upon deceased, the medico-legal report has no corroboratory value. But the post-mortem report negates the prosecution version. The prosecution has not furnished any explanation regarding three entry wounds on the person of deceased. If one bullet was fired then how there were three entry wounds on the body of deceased. We have ourselves minutely perused the post-mortem report. The doctor has entered in the post-mortem report that injuries No, (i) and
(iii) are caused by broken pieces of bullet which hit at the place of injury No, (ii). It is interesting that the doctor has described injury No, (i) as 1" x 1" penetrating wound on left side of chest and 11/2 from left sternal boarder. Entry wound of 30-bore pistol bullet itself cannot be 1" x 1" particularly when the doctor has described that this injury is caused by a piece of bullet which caused injury No, (ii).
Injury No, (ii) is shown as 0.5 x 0.5 cm penetrating wound. If injury No, (i) Was caused by a broken piece of bullet causing injury No, (ii) Then injury No, (ii) Must have been larger as compared to injury No, (i). Injury No, (iii) is shown as 0.25 x 0.25 c.m. penetrating wound on right upper part of abdomen. The doctor has stated that the bullet has been fired from a distance of five to eight feet.
This finding of the doctor in the post-mortem report is against the principle of Medical Jurisprudence. The text book of "Modi's Medical Jurisprudence and Toxicology" says that if a firearm like a shotgun is fired from a distance of upto three feet then there can be blackening on the wound. In case of a pistol fire, blackening can be found only if fired from a distant of upto 2 feet.
Doctor may opine that the bullet has been fired from the distance of more than 2 feet. The opinion that the bullet has been fired from the distance of five to eight feet is against the principles of Medical Jurisprudence. We may cite "Modi's Medical Jurisprudence and Toxicology" Twenty First Edition published in 2003-2004, wherein at page 354 it is observed as under:--- "Distance of the fire-arm.
If a fire-arm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a grayish or white deposit on the skin around the wound. If the area is photographed by infrared light. a smoke halo round the wound may be clearly noticed. blackening is found, if a fire-arm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet. In the absence of powder residue no distinction can be made between one distant shot and another, as far as distance is concerned. Scorching in the case of the latter fire-arms is observed within a few inches, while some evidence of scorching in the case of shotguns may be found even at one to three ft. Moreover, these signs may be absent when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of gunpowder will all follow the track of the bullet in the body."
The distance of less than 2 feet can be determined by doctor from burning and blackening on the wound but the distance beyond 2 feet cannot be described with certainty.
26.The entry wound in the shots is usually smaller than the projectile due to elasticity of the skin.
The edges of the wound are inverted. The post-mortem report says that injury No, (i) was caused by a piece of bullet of 30-bore which caused injury No, (ii). Piece of bullet of 30-bore pistol cannot cause 1" x 1" entry wound. Entry wound appears to be improbable by a piece of jacket of 30-bore pistol. At the end of post-mortem, the doctor has entered a note "one bullet and two pieces of jacket recovered and handed over to police". The jacketed bullets are used in the pistol. In "Parikh's Text Book of Medical Jurisprudence and Toxicology", at pages 264 and 265 Jacketed bullet is defined by Dr. C.K. Parikh in the following words:--- "A bullet is made of lead which has higher sectional density, (mass/diam) so essential for a steady flight. Frangible bullets made of iron have recently been reported. Since lead is a soft material and, easily deformable, the bullet is jacketed either fully or partly with cupronickel, copper, or other harder casing. The tip of the bullet is known as the nose. The bullet is cylindrical from the base onwards and conical towards the tip (nose). This ensures least. resistance to its passage in air. The striking energy of a fired bullet is proportional to its mass (m) and the square of its velocity or)
(energy = 0.5 xmxv). It follows that the higher the velocity, the greater the striking energy and the damage."
The jacket covers the bullet so as to strengthen the same. It cannot be separated ordinarily from the bullet. After the fire, if the jacket is separated and broken into pieces, whether it can enter the body with the same force, as the bullet enters or pieces of jacket fall between the nozzle of gun and the object on which it is fired particularly when fired from a distance of 5 to 8 feet. If the pieces of jacket enter the body of the deceased at different places, then there must have been tear nnarks on shirt and banyan. We for our own satisfaction ordered the Advocate-General to produce the articles. Only a shirt and bunyan were produced. The pistol and the pieces of bullet couldn't be traced out due to destruction of building during the earthquake of 8th Oct., 2005.We have minutely examined the shirt and bunyan with the help of counsel for the parties and the Additional Advocate-General. There is only single tear mark on the shirt and bunyan which negates the post- mortem report that there are three injury wounds on the person of deceased. It reveals that the prosecution has not come with true picture.
27. There are other aspects of the case which cast serious doubt in the investigation. The inquest report is prepared by Abdul Qayum, A.S.I. after examining the dead-body. It is the case of the prosecution that the deceased died after reaching C.M.H. but Abdul Qayum in column No, 1 of inquest report has entered that the dead-body was recovered from Danna. He has stated that the death was caused by 30-bore pistol. It appears that the inquest report was prepared after consultations.
28. There is another aspect of the case that S.H.O., Hassan Wazir Afridi, in his Court statement stated that he arrested the accused on the night of occurrence, i,e, 25th July, 2005 and recovered pistol from him but the recovery memo. is shown to have been prepared on 29th July, 2005. The recovery appears to be fake which also casts serious doubt in the investigation of the case.
29. As has been held earlier that there are four eye-witnesses of the occurrence, who stated that the convict-appellant fired on deceased in their presence. The criterion (urdu) for conviction of an accused for the offence of Qisas is two male eye-witnesses. If the witnesses are found Adil, their testimony is confidence inspiring, then the accused is liable to be sentenced to Qisas under Section 302(a), APC. In a case where independent witnesses are present on the place of occurrence but instead of producing them only related witnesses are produced and the post-mortem report as well as the Firearm Expert report do not support the prosecution story, the investigation appears to have been conducted in an unfair manner. In these circumstances the awarding of sentence of Qisas by the Shariat Court is not justified. We agree with the learned counsel for the complainant that the deceased was also a young man and when the case of Qisas is proved from confidence inspiring evidence, then the question of expectancy of life does not arise, but the fact remains that the cumulative effect after analysis of all the evidence leads to the inference that direct evidence coupled with other circumstances is not of such standard on the basis of which the sentence of Qisas be awarded to the appellant. From the whole circumstances, mentioned above, the convict- appellant has made out a case for expectancy of life. We are fortified in this view by the case titled Shaukat Khan v. The State [Criminal Appeal No, 1 of 2011, decided on 10.1.2013] wherein it was observed as under:-- It cannot be said with certainty that what sort of situation arose before the occurrence in the result of which Sajid, deceased, was murdered. Therefore, we can safely hold that the manner in which the occurrence took place is shrouded in mystery for which the convict-appellant is entitled to the lesser punishment as has been laid down in a case reported as Faiz Ahmed v. The State [2008 SCMR 1559], in which it has been observed as under:--- '17. Learned High Court has appreciated the entire evidence on record by making thread-bare examination of each piece of evidence supported with reasons based on record. No piece of evidence incriminating in nature produced by the prosecution appears to have been misread, omitted from consideration or not appreciated in its true perspective.
18.However, having regard to facts and circumstances of the case, we find that the appellant is in death cell for the last about 14 years. 'The motive is alien to him and co-accused charged for firing has been acquitted. Therefore, we are inclined to reduce his sentence from death to imprisonment for life, to meet the ends of justice.'
Resultantly we are inclined to partly accept this appeal and convert the sentence of death as 'Tazir' into life imprisonment which would meet the ends of justice. The benefit of Section 382-B, Cr.P.C. shall also be available to the convict-appellant."
30.We have considered the arguments of the learned counsel for the complainant in respect of motive, failure of accused to cross-examine the eye-witnesses on material points, corroboration by medical evidence and relationship of witnesses. We have dealt with all the points in preceding paras therefore separate findings on the points is not required.
31.The result of above discussion is that the appeal is accepted. The sentence of Qisas awarded by the Shariat Court vide judgment dated 15.4.2010 is set aside. The sentence awarded by the Trial Court is restored.