CH. MUHAMMAD IBRAHIM ZIA, J. --- These appeals have arisen out of the consolidated judgment of the Shariat Court dated 6.1.2010, whereby criminal appeal No, 18/2002 filed by convict-appellant Sain Khan, has been partly accepted while converting the death sentence into life imprisonment, whereas Appeal No, 34/2002 filed by the complainant as well as Reference No, 17/2002 filed by the Trial Court have been refused.
2. The brief facts forming the background of these appeals are that the complainant, Muhammad Bashir filed a written report at Police Station Dadyal on 6.3.1996 at 5:30 p.m. According to the averments made in the report, the complainant's brother, Haji Muhammad Farid s/o Allah Ditta alongwith the labours, namely Nisar s/o Tota and Abdul Ghani s/o Fazal Dad, caste Jat, r/o Tharah, mozia Dagar, after unloading the goods, was coming back to home on his personal tractor from Tharah. When he crossed the pipe bridge on the road, Sain Khan, armed with 222 rifle, Muhammad Sajawal and Muhammad Suleman, armed with 12 bore rifles each, who were ambushed themselves in the way, with the intention to kill stopped the tractor and raised 'Ialkara' upon brother, Haji Muhammad Farid that you will not be let alive today'. Upon this, the brother, Muhammad Farid, alighted from the tractor and started running towards his home. Sain Khan s/o Muhammad Hussain who was armed with 222 rifle, aimed at brother, Muhammad Farid and fired.
The fire hit at the brother's head near to right ear due to which he fell down and died on the spot.
The occurrence was seen by the labours sitting in the trolley and Azam s/o Muhammad Hussain, who was also present nearby. Muhammad Azam, informed the complainant Muhammad Bashir, about the incident. On this, the complainant went on the spot and found the dead-body of brother Muhammad Farid soaked with blood. The accused party, after committing the murder, ran away from the place of occurrence. The motive behind the occurrence is stated to be an old enmity and litigation between the parties.
3. On this report, a case for commission of offences, under sections 302, Qisas & Diyyat and 34, Azad Penal Code, was registered against the accused at Police Station, Dadyal. The dead-body of Haji Muhammad Farid, deceased, was taken to Dadyal Hospital for post-mortem. The police started investigation. During investigation, Section 13, Arms Act, 1965, was also added.
4. After completion of necessary investigation, the police submitted challan before the District Criminal Court Mirpur for the alleged offences. The accused were examined under. Section 242, Cr.P.C. on 6.7.1996, who pleaded not guilty and claimed trial. They were cross-examined under Section 342, Cr.P.C. but once again they pleaded not guilty.
5. The statements of witnesses were also recorded. The evidence to the extent of the prosecution witnesses, Muhammad Sabir, Mazhar Hussain, Kamal Hussain, Munir Hussain, Chemical Examiner, and Director Forensic science Laboratory Lahore, was closed.
6. After conclusion of the trial, the District Court of Criminal Jurisdiction, Mirpur, found the accused, Sain Khan guilty for the commission of the murder of Haji Muhammad Farid Sain Khan, accused- appellant was convicted and awarded the death sentence as "Qisas", for commission of the offence under Section 302, A.P.C., vide judgment dated 23.4.2002, whereas the litigation being not proved against other accused Muhammad Suleman and Muhammad Sajawal, they were extended the benefit of doubt, hence, acquitted of the alleged charges.
7. Both the parties challenged the legality and correctness of the judgment of the District Court of Criminal Jurisdiction Mirpur through separate appeals in the Shariat Court. A reference was also filed by the District Criminal Court for confirmation of the sentence of "Qisas". The convict-appellant prayed for his acquittal by setting aside the judgment of District Criminal Court, whereas, the complainant party challenged the judgment of Trial Court to the extent of acquittal of the accused-respondents, Muhammad Suleman and Sajawal.
8. The learned Shariat Court, after necessary proceedings, vide impugned judgment dated 6.1.2010, partly accepted the appeal filed by Sain Khan, convict-appellant and modified the judgment of the Trial Court while converting the death sentence into life imprisonment. However, the appeal filed by complainant-appellant, was rejected while concurring with the findings recorded by the Trial Court to the extent of acquittal of accused, Muhammad Sajawal and Muhammad Suleman. The reference submitted by the Trial Court for confirmation of sentence of a death as "QFsas" awarded to Sain Khan was also answered in negative by the Shariat Court.
9. Both the parties have now approached this Court through separate appeals. The complainant- appellants prayed for setting aside the judgments of the Courts below to the extent of the acquittal of Muhammad Sajawaj and Muhammad Suleiman, accused, whereas to the extent of Sain Khan, convict-appellant, they have prayed for setting aside the judgment of the Shariat Court and restoration of the judgment of Trial Court dated 23.4.2002. The convict-appellant, Sain Khan in his appeal has prayed for setting aside the judgments of both the Courts below and requested for his acquittal on numerous grounds.
10. Raja Inamullah Khan, Advocate, the learned counsel for the convict-appellant, argued the case at some length and also attempt to convince the Court for reappraisal and re-appreciation of evidence. He also submitted that there are major dents in the prosecution case. The depositions made by the prosecution witnesses are also mutually inconsistent. Moreover, the major improvements have been made in the statements before the Court as compared to the statements made before the Investigating Officer. One of the eye-witnesses, Abdul Ghani, who may be an impartial witness, has been discarded. The circumstantial evidence, oral evidence and site plan, when judged in the light of the depositions made by the witnesses, creates serious doubts, therefore, the whole prosecution story becomes doubtful. The prosecution failed to bring on record any sort of evidence regarding the pre-planning and conspiracy. The prosecution has produced only closely related witnesses on the basis of the statements of such witnesses imposition of conviction is against the principles of administration of justice. As the same evidence to the extent of some accused have been disbelieved and they have been acquitted whereas such evidence has wrongly been believed against the convict, therefore, the rule of propriety demands that such evidence cannot be made basis for conviction of the convict-appellant. The prosecution has totally failed to prove the recovery of tie crime weapons as the recovery witnesses have not been produced. A deep scrutiny of the evidence will lead to the conclusion that neither the complainant nor the other so-called eye-witnesses were present at the time of occurrence. The purgation of witnesses has not been conducted according to law. Thus, these are the material facts which demands acquittal of the accused. As an alternate, the learned counsel submitted that if at all the Court reaches the conclusion that it is not a case of acquittal, then in the given circumstances, it is clear case of lesser punishment and the punishment undergone will meet the required ends of justice. He also submitted that the cross appeal filed by the complainant-party is totally against law which has no substance and is liable to be dismissed. In support of his version, he has placed reliance upon the cases reported as Muhammad Khurshid Khan v. Muhammad Basharat and another [2007 SCR 1], Muhammad Yaqoob and 4 others v. The State & another [2009 SCR 104], Khurram Malik & others v. The State and others [PLD 2006 SC 354], Ali Hussain & another v. Mukhtar and 2 others [1983 SCM R 806] and Liaquat Hussain & another v. Ulfat Khan and others [2007 SCR 39].
11. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the complainant-appellants while controverting the arguments of the learned counsel for the convict-appellant submitted that there are concurrently recorded findings against the convict-appellant. Unless, there' is any major departure from law, reappraisal or re-appreciation of evidence is not the job of this Court at this stage. He submitted that this case is of direct evidence and the broad daylight. Neither there is any doubt regarding identification of accused nor any contradiction is found in tie statements of eye- witnesses. The prosecution has succeeded to establish its case beyond any shadow of doubt. He further submitted that the presence of the accused at the place of occurrence is also an admitted fact. In this regard, he drew the attention of the Court towards the findings recorded by the Shariat Court, available at page 25 of the impugned judgment, wherein after reappraisal of the evidence, it has been held that the trend of cross-examination, especially putting suggestions to the prosecution witnesses by the defence, makes the time, place of occurrence and presence of deceased and accused party as an. admitted fact. Thus, there remains no doubt regarding place: of occurrence, presence of accused etc. He submitted that the acquitted accused, in the light of the peculiar facts of the case and the evidence brought on record, deserve for conviction according to celebrated principle of statutory law. According to the prosecution story, the provisions of Section 34, A.P.C., are fully attracted against all the accused and the case has been fully proved. While referring to the case-law the learned counsel submitted that the principle of vicarious liability has been discussed and elaborated in the case reported as Shafoo & others v.
The State [1968 SCM R 719]. This case-law fully applies to this case. He also referred to the cases reported as Shabbir Ahmad v. The State & another [1997 SCR 206] and [PLD 2000 SC 354]. He argued that in the light of peculiar facts, the punishment awarded to Sain Khan by the Trial Court be restored and the co-accused may also be punished for the alleged offences while attracting the provisions of Section 34, A.P.C.
12. We have paid our utmost attention to the respective arguments of the learned counsel for the parties and also examined the record especially, the judgments of the Trial Court as well as the learned Shariat Court. A detailed examination of the judgments of Courts below reveals that concurrent findings of the facts have been recorded against the convict after due appreciation of the material brought on record. The learned counsel for the convict-appellant has pointed out some minor flaws, which according to his estimation, amount to falsify the prosecution story, hence, the prosecution failed to prove, its case beyond shadow of doubt. In the light of peculiar facts of this case, all the objections raised on behalf of defence, the contradictions among the statements of witnesses or variation among the ocular, medical and circumstantial evidence, proof of the recovery of crime weapon, relationship of the prosecution witnesses and the discrepancies in the statements of 'eyewitnesses recorded under Section 161, Cr.P.C. etc. have been considered in the light of the material brought on record. When these points judged upon the touch stone of the principle of administration of criminal justice, we found that none of these is of such importance which has legally prejudiced the legal rights of the convict-appellant. In the light of the peculiar facts and circumstances of his case, none of these discrepancies is fatal for the prosecution and we do not need to record separate findings on each as in this regard this Court has already enunciated the principle of law in relation to suck-like points in an authoritative judgment in the case reported as Abdul Rashid & 3 others v. Abdul Ghaffar and 5 others [2001 SCR 240], while considering such-like objections, as not of worth consideration. It will be useful to reproduce here the relevant portion of the judinent as under:--- "7. The contention on behalf of the accused-respondents that inquest report and injury sheet were prepared by Zulqarnain and his non-production is fatal to the prosecution case is not tenable for the simple reason that the preparation of inquest report etc. are hardly material if the case is otherwise established by the prosecution. There may be some importance of inquest and injury sheet in certain cases where cause of death is doubtful but in the instant case, there is no such dispute. Besides the FIR, in the aforesaid inquest report and injury sheet, the fatal injury is alleged to have been caused by twelve-bore gun. Therefore, the non-production of Zulqarnain, ASI, as a prosecution witness does not detract from the truth of the prosecution story or renders the same as doubtful.
8. The next question which needs resolution is as to whether the motive in the instant case has not been proved merely because the incidents of 22.6.1985 and 23.6.1985 were not put to the accused persons while they were examined under Section 342, Cr.P.C. It may be observed that if a piece of evidence is not put to an accused person in his examination under Section 342, Cr.P.C., either the case may be remanded for re-examination of the accused person under Section 342, Cr.P.C, or the same may be excluded from consideration. We are of the opinion that instead of remanding the case, we exclude from consideration the evidence in support of the fact that the accused- respondents tried to pickup quarrel with the deceased on the aforesaid two dates. But that does not impiy that there was no political rivalry which actuated the incident. The aforesaid two incidents were the result of political rivalry which is alleged as motive in the case and were not motive itself. Thus, the Shariat Court was not justified to hold that as the aforesaid two incidents were not put to the accused-respondents under Section 142, Cr.P.C., there was no motive for the accused persons to attack the deceased. It may also be pointed out that this is a well-settled principle of law that if a case is primarily based on ocular evidence, it is not necessary to prove motive, A reference may be made to the following authorities:--- In a case reported as Muhammad Ramzan v. The State [NLR 1992 Or.LJ. 82], it was held that mere absence of motive was no ground to doubt the truth of prosecution case.
In a case reported as State/Government of Sindh v. Sobharo [NLR 1993 SCJ 385], it was observed that absence or weakness of motive would not come in the way of prosecution if the case is otherwise proved by reliable evidence.
In a case reported as Shabbir Ahmed v. The State [1997 SCR 206], it was held that motive was not a sine qua non for proving the offence of murder.
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 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 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 distance 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 witness in such a case to give the precise distance; there is always a possibility of error of few feet or yards.
The observation of the Shariat Court that according to the statements of eye-witnesses, the distance between the assailant and deceased was about five to six yards is concerned, it may be observed that the witnesses gave statements in the Court after more than three years of the incident. Therefore, the aforesaid statements at the trial would not nullify the distance between the assailant and victim of offence at the time of firing which is mentioned in the site plan. Even otherwise, if ocular evidence is found trustworthy, the same cannot be rejected merely because there was some variation between the prosecution witnesses and the medical evidence on the point of distance between the assailant and the victim at the time of inflicting the injury.
10.The Shariat Court has also held that the recovery memo. Ex. PL, which was signed by Naseer Ahmed and Inayat Ali was not proved by the witnesses. It may be observed that the aforesaid two witnesses have clearly stated that the gun, Ex. P/6, was recovered at the instance of Abdul Ghaffar, accused-respondent. They have proved recovery memo. Ex. PE taken it to be the recovery memo. of the gun which is Ex. PL due to the inadvertence of prosecutor who conducted the trial.
Apparently, the mistake was caused as a result of oversight of the prosecutor and, thus, it cannot be said that the recovery of the gun from Abdul Ghaffar, accused respondent, has not been proved, especially so when Ex. PE is a recovery memo. of the license of the gun which is in the name of the accused-respondent. It follows from what has been stated above, that the Shariat Court was not justified in holding that the gun in question has not been proved to have been recovered from Abdul Ghaffar, accused-respondent.
11.The reasoning given by the Shariat Court that the recoveries of empties and gun were not witnessed by independent witnesses of the locality and as sudh the same cannot be considered against the accused respondent is also not correct. It has been held in a number of cases that strict compliance of Section 103, Cr.P.C. is not necessary in case of recoveries of seizure memos. made by the police. Similarly, mere relationship of the witnesses of the recovery memos. is not a ground to reject their testimony, dubbing the same as doubtful, A reference may be made to the following authorities in support of the view:--- In a case reported as State v. Abrar Hussain Shah [PLJ 1990 Cr.C. (AJK Shariat Court) 494], it was held that if recoveries are made at the instance of accused person there is no rule that such a recovery must be made according to the provisions contained in Section 103, Cr.P.C.
In a case reported as Qillandar Shah v. Azad J&K Government [PLD 1957 Azad J&K 1], it was held that the word 'locality' used in Section 103, Cr.P.C., is not to be strictly construed and a person residing few miles away from the place of recovery would be deemed to be a person of locality within the meaning of Section 103, Cr.P.C.
In a case reported as Abrar Hussain Shah v. The State [PLD 1992 SC (AJ&K) 20], it was held that recovery made at the instance of an accused person is not governed by the provisions contained in Section 103, Cr.P.C. the said provisions pertain to the such made by a police officer under .
Chapter VII of Cr.P.C. and not to a recovery made by a police officer at the instance of an accused person.
12.The Shariat Court was also not correct in holding that as Dr. Muhammad Akram Chaudhry has mentioned in the post-mortem report that he has also recovered a 'bullet' from the dead-body, the fact that injury to Fazal-ur-Rehman, deceased, was caused by 12-bore gun is doubtful. According to the statement of Dr. Muhammad Akram, the injury on the person of deceased was caused by fire-arm. He has also recovered three pellets from the dead-body of the deceased. Therefore, it cannot be said that the use of the word 'bullet' in the post-mortem report, would imply that injury to Fazal-ur-Rehman, deceased, was not caused by gun fire but by rifle or pistol. It may be observed here that some cartridges contains small pellets as well as large pellets like those used in 'LG' cartridge. Therefore, it is possible that large pellet was described by medical officer as "bullet' in his report because there is no difference between the two. Thus, it cannot be inferred from the report prepared by Dr. Muhammad Akram that the injury which caused death of Fazal-ur-Rehman, deceased, was not caused by 12-bore gun but was caused by any other fire-arm like a rifle or a pistol.
13. The next question which needs resolution is as to whether the Shariat Court was justified in holding that prosecution witnesses are related to the deceased and were inimical to the accused respondents. It may be observed that except Abdul 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 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 show that according to the defence, they were related to the complainant party remotely; according to the suggestion the aforesaid two witnesses suppressed the names of their grandfathers in the cross-examination so as to conceal their relationship. Even if it is assumed that there was any such remote relationship, how the said witnesses would become 'interested witnesses'. An 'interested witness' is one who falsely implicates an innocent person with the commission of offence with ulterior motive. Thus, a related Witness would be interested to secure the punishment of the actual culprit and not falsely implicate a person in place of the real perpetrator of a crime. It may be observed that the party may rope innocent persons in a crime alongwith a real culprit but it is not a natural that a party would lead the real culprit and instead falsely implicate innocent persons. Similarly, it has been observed by the Shariat Court that according to Dr. Muhammad Tufail, the injury on the little finger of Muhammad Siddique, P.W., was with a blunt weapon but according to the prosecution, the same was caused by gun fire. It may be observed that according to Dr. Muhammad Tufail, the aforesaid witness was twice Ex-rayed, i,e,, at Bhimber and Mirpur Hospitals. Thereafter, a metal piece was taken out of the injury sustained by the said witness which clearly shows that Dr. Muhammad Tufail was not correct in mentioning in his medical report that injury to Muhammad Siddique, P.W. was caused with blunt weapon. It s on the record that according to Muhammad Siddique, P.W., when he was firstly referred to Dr. Tufail, C.M.O. Barnala, he did not examine him and referred him to C.M.H., Mirpur because the doctor was related to the accused party. He has also given the precise relationship of Doctor with the accused party. Therefore, there was hardly any justification to hold that the prosecution story was also falsified by the medical report of Dr. Tufail.
14. The Shariat Court has also observed that some litigation between Muhammad Shafi, accused respondent, and Muhammad Siddique, P.W., had been pending in a Criminal Court which finally culminated in the conviction of Muhammad Siddique. It is stated by a witness that there was such a litigation but he was acquitted in the case on appeal much earlier. Thus, it cannot be said that the aforesaid incident was an enmity of such a degree which would necessitate corroboration of the statement of the said witness before relying upon the same.
15.So far as Walayat Khan, P.W., is concerned, the main reason for rejecting his testimony given by the Shariat Court is that he was a casual witness who lived about three miles from the place of occurrence. It may be stated that he clearly stated in his statement that on the day of occurrence, he was going to Watala to see his relatives when this incident took place. It is correct that the testimony of a chance witness should be carefully scrutinized but that does not mean that his testimony should be acted upon only if the same is corroborated by independent evidence.
However, it may be observed that in the instant case, there is also corroborative evidence in form of recoveries and medical evidence which shows that it was Abdul Ghaffar, accused respondent, who committed the murder of Fazal-ur-Rehman, deceased.
16.The contention of the learned counsel for the accused-respondents that the offence was committed at some other place and the occurrence was not witnessed is without any substance.
He has also argued that the place of occurrence was changed to fabricate the evidence of Muhammad Yousaf, shopkeeper. It may be observed that the production of Muhammad Yousaf, shopkeeper, was not necessary for the prosecution in the circumstances of the case when the other three eye-witnesses were produced in the Court. The defence cannot get any advantage out of the non-production of the said witness because it was at liberty to examine him in defence. It may also be observed here that blood-stained earth was seized by the police from the place of occurrence vide seizure memo. Ex. PZ/2 which is amply proved by the statement of Beerbel and Akhter Hussain, S.I. Therefore, it is preposterous to suggest that the occurrence did not take place as suggested by the prosecution but the same took place at some other place and a false story wat fabricated.
17. The Shariat Court was also not correct in holding that as the testimony of the prosecution witnesses was disbelieved regarding respondents Nos. 2 to 5, the same cannot be believed in respect of Abdul Ghaffar, accused-respondent. It is a celebrated principle of law that a Criminal Court has to sift the grains of truth from the chaff of falsehood. Therefore, the testimony of prosecution witnesses can be relied upon against some accused while rejected against the others.
A reference may be made to the following authorities in support of the said view:--- In a case reported as Zahir Hussain Shah v. Nawaz Khan [2000 SCR 123] it was held as under:-- "The ocular account of the eye-witnesses is also to the same effect that at the time of occurrence the deceased and victim were standing at a distance of about 2 feet from each other. It is also possible that the bullet of revolver while slanting the umbilicus might have travelled to the left buttock from .where the exit wound is found. The Shariat Court also seems to have been impressed by the fact that the prosecution story becomes doubtful as the eye-witnesses deposed that the deceased after receiving bullet injuries by Shah Nawaz Khan accused fell down on the ground and was beaten by accused Aurangzeb and Rang Baz Khan with the 'Butts' of Rifle but this deposition does not find any corroboration by the medical report of injury sheet prepared by the Investigating Officer. According to the doctor, there was only one fire-arm injury on the person of deceased. The mere fact that the evidence of eye-witnesses is not corroborated by medical legal evidence in respect of Aurangzeb and Rang Baz Khan, accused, we cannot discard the entire evidence of the eye-witnesses. The maxim 'falsus in uno falsus in omnibus' has since long been discarded by the superior Courts of Azad Jammu and Kashmir and Pakistan. The grain has to be sifted out of the chaff. When main part of the deposition is true, it should not arbitrarily be rejected because of want of veracity on perhaps some minor . point. Therefore, where a witness is stated to have given false evidence to implicate some innocent persons besides the real culprits, the whole deposition may not be rejected when the most of evidence which rings true can be legally relied upon.'
In a case reported as Muhammad Sharif v. The State [PLD 1978 SC (AJ&K) 146], it has been observed as foIlows:--- The maxim 'falsus in uno falsus in. omnibus' (false in one particular falls in all) is a dangerous one specially in this part of the country for if whole of testimony were to be rejected because of witness was evidently speaking untruth in one or more particulars, it is to be feared that witness might be dispensed with. There is always embroidery to a story, however, true in the main. When main part of the deposition is true it should not arbitrarily be rejected because of want of veracity on perhaps some very minor point. (Fields Law of Evidence in British India, 8th Edition XL and XLI). Therefore, where a witness is stated to have given false evidence to implicate some innocent persons, besides the real culprits, his whole deposition may not be rejected when, the main portion of evidence, which rings true can be legally relied upon. We are support in our view in PLD 1977 SC (Pak.) 413. In that case 8 persons were tried by the Additional Sessions Judge Sukkur on a charge under Section 302/307 read with Section 148/149, P.C. and Section 13(d) of the Arms Act. The Sessions Judge convicted three persons under sections 302/34 and 307/34 and acquitted all the other persons. The three convicted persons went in appeal to the High Court. The State also filed an appeal against the acquittal of the five persons. The High Court dismissed the appeal of the State and allowed the appeal of the three convicted persons. The State went in appeal to the Supreme Court and the Supreme Court convicted Nazo and Abdul Hamid, respondents Nos. 4 and 6 in the case as according to the Supreme Court, their acquittal amounted to grave miscarriage of justice.
The appeal against the 3rd accused was however refused.
In a case reported as Khanan v. The State [1968 SCM R 1314], it was observed that the prosecution witnesses were disbelieved regarding three accused persons out of five. On appeal it was held by the Supreme Court that the mere fact that the evidence was disbelieved regarding three accused was no ground to disbelieve the same about remaining two accused."
Thus, keeping in view the nature of objections, we are not convinced to make reappraisal of the whole prosecution evidence especially, when the impugned judgments are well-reasoned and based upon appreciation of evidence. Our this view finds support from the case reported as Shabbir Ahmed v. The State and another [1997 S.C.R. 206], wherein it is observed as follows:--- "7.Re-appraisal of evidence is not a function of this Court. Once it is settled that there has been proper appraisal of the evidence this Court does not even draw conclusion different from those drawn by the first Appellate Court and the Trial Court. However, this Court does examine evidence to see whether there has been any gross misreading or non-reading which may have resulted in miscarriage of justice."
13. The next question argued by both the parties relates to quantum of punishment. In this case, the prosecution has brought ocular evidence which also finds support from the circumstantial evidence. It is a broad daylight occurrence. The Trial Court as well as the learned Shariat Court properly appreciated the evidence and drew the correct conclusion thus, the findings recorded are well-reasoned and supported by evidence. The prosecution has succeeded in proving the case against the convict-appellant beyond shadow of doubt. Both the parties have stressed on the quantum of punishment; accused wants lesser punishment, whereas the complainant party wants restoration of the punishment of death as 'Qisas' awarded by the Trial Court. The learned Shariat Court, while attending this vital point, has dived deep for drawing the conclusion that the convict deserved for lesser sentence, firstly, the reason that the set up motive by the prosecution has not been established and secondly, that the prosecution evidence has been disbelieved to the extent of accused Muhammad Suleman and Muhammad Sajawal and lastly that the convict appellant is behind the bars since more than a decade's period.
14. The learned counsel from both sides although argued the case at some length but they could not satisfy the Court that the extenuating in Instances, to mitigate the abnormality of the crime considered by the Shariat Court are not befitting according to the facts of the base in hand or could not be considered under law. Even otherwise, life imprisonment is also a legal and normal punishment provided by law. This Court in a recent judgment in the case titled Ansar Mehmood and another v. Manazir Hussain and others (Criminal Appeal No, 24/2009) decided on 3.12.2013, while dealing with this proposition has observed as under:---
14. The perusal of the judgment of learned Shariat Court reveals that in the opinion of Shariat Court, only the death sentence is a normal penalty. But in our opinion, in view of clear statutory provision the punishment of death or life imprisonment as Ta'zir' are alternate sentences, hence, both can be treated as normal sentences. Our this view finds support from the at least judgment of the apex Court of Pakistan handed down in the case reported as Hassan and others v. The State and others [PLD 2013 SC 793]. It will be useful to reproduce here the relevant portion of the judgment which speaks as under:-- 23.Upon the strength of the provisions of sub-section (5) of Section 367, Cr.P.C., it has been maintained before us that the normal sentence for an offence of murder is death and while considering a prayer for reduction of a sentence of death passed against a convict this Court may remain mindful of that statutory stipulation. We have found such a submission to be suffering from multiple misconceptions. Sub-section (5) of Section 367, Cr.P.C.
"(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, then the Court shall in its judgment state the reason, why sentence of death was not passed."
We have not been able to find anything in the said provision of law even hinting at the sentence of death being the normal sentence in such a case. Section 302(b), P.P.C. clearly provides for two alternative, sentences, i,e, sentence of death or sentence of imprisonment for life for the offence of murder and it does not state that any one of those sentences is to be treated as the normal sentence. As a matter of fact Section 302(b), P.P.C., itself mentions that any one of the two alternative sentences provided for therein is to be passed "having regard to the facts and circumstances of the case". There are cases when, "the facts and circumstances of the case" do not warrant a sentence of death and what is required by sub-section (5) of Section 367, Cr.P.C. is that such facts and circumstances of the case ought to be mentioned by the Trial Court in its judgment so that the higher Courts may straightaway become aware of the same while entertaining or deciding a challenge thrown against the Trial Court's judgment. We believe that the general misunderstanding or misconception about the true import of the provisions of sub-section
(5) of Section 367, Cr.P.C. entertained by the legal community, including the Courts, in this regard needs to be removed and rectified. The other misconception about sub-section (5) of Section 367, Cr.P.C. is that it is considered to be applicable to the entire hierarchy of Criminal Courts whereas that is not the case. Subsection (5) of Section 367, Cr.P.C. is placed in Chapter XXVI of Part VI of the Code of Criminal Procedure, 1898 and Part VI of the Code pertains only to 'Proceedings in Prosecutions' before a Trial Court. The matters pertaining to the appellate and revisional Courts are provided for in Part VII of the Code and that Part of the Code does not contain any provision akin or similar to that of sub-section (5) of Section 367, Cr.P.C. It is, thus, evident that the requirements of sub-section (5) of Section 367, Cr.P.C. are relevant only to Trial Court and they have no application to an appellate or revisional Court. The provisions of Section 423(1)(b), Cr.P.C. unambiguously show that it is well within the powers of an Appellate Court seized of an appeal against conviction to reduce the sentence of a convict and the requirement relevant to a Trial Court, as contained in sub-section (5) of Section 367, Cr.P.C., is not to be found in Section 423(1)(b), Cr.P.C. The powers conferred upon a revisional Court under sections 435 and 439, Cr.P.C. also clearly demonstrate that while exercising revisional jurisdiction a sentence can be reduced and, again the requirement relevant to a Trial Court, as contained in sub-section (5) of Section 367, Cr.P.C., is not to be found in Sections 435 and 439, Cr.P.C. it, therefore, goes without saying that when an appellate or revisional Court is considering a question of propriety or otherwise of a sentence passed against a convict the provisions of sub-section (5) of Section 367, Cr.P.C. cannot be pressed into service before it and any question of the sentence of death being the normal sentence is hardly relevant before the appellate and revisional Courts.'
Thus, in the light of the statutory provisions as well as principle of law enunciated by the apex Court of Pakistan, it can safely be concluded that in the punishment as "Ta'zir" for qatl-i-amd, the sentences of death and life imprisonment are alternative and both are normal sentences."
' Thus it is not necessary that in all the circumstances, if the case of murder against accused is proved, he will be awarded death sentence, rather life imprisonment is so a normal and legal sentence. Keeping in view all the facts and material of the case, we concur with the findings recorded by the Shariat Court. The case of the convict-appellant falls under Section 302(b), A.P.C, hence,, the provided punishment of life imprisonment has been rightly awarded.
15.So.for as the case-law cited by the parties is concerned, we would like to firstly consider the case-law referred to by the learned counsel for the conyict-appellant:-- In the case reported as Muhammad Khurshid Khan v. Muhammad Basharat & another [2007 SCR 1], the principle of law enunciated in this case except the quantum of punishment, goes in favour of the prosecution. However, in relation to the quantum of punishment, it has been held that the same requires utmost care and should be weighed in golden scale and should be balanced without being unnecessary harsh. Therefore, the principle of expectancy of life and motive being shrouded in mystery, extreme penalty of death has not been awarded.
The other case .relied is reported as All Hussain and another v. Mukhtar arid 2 others [1983 SCM R 806]. In this case the question of sharing common intention of the acquitted accused with the principal accused has been considered in the following manner:-- "As regards the appeals of the other two accused/respondents Sal* and Mukhtar, we do not find any evidence to saddle them with the responsibility of sharing common intention with Mumtaz accused/appellant. They might have been present at the time of occurrence and played the role attributed to them but without knowing that Mumtaz. accused/appellant would whip out a knife and cause a fatal injury to the deceased. Thus, appeal against the acquittal of Sabir and Mukhtar, respondents, stands dismissed."
However, in this case, the point of non-proving of motive or credibility of witnesses has been resolved in favour of the prosecution.
In the case reported as Khurram Malik and others v. The State & others [PLD 2006 SC 354], the apex Court of Pakistan rejected the appeal on the plea of expectancy of life for lesser punishment. Thus, this case also not favours the version of the convict-appellant.
In another case referred as Muhammad Yaqoob and others v. The State & another [2009 SCR 104], while considering expectancy of life proposition, considering the question of quantum of punishment, it has been held as follows:--- "11. Quantum of sentence in the case of murder is death or Qisas as the case may be. However, it depends upon the circumstances of a case whether the sentence of death or Qisas, as the case may be, or any lesser punishment be awarded."
16.The learned counsel for the complainant-appellant, has relied upon the case reported as Shafoo & others v. The State [1968 8CMR 719]. In this case, it has been held that weakness of alleged motive is no ground to reject the testimony of direct ocular evidence and also several accused acting in concert, while lying in ambush and with common object of the deceased. All constructively liable for offence.
In the other case referred as Shabbir Ahmed v. The State [1997 SCR 206], the expectancy of life and quantum of sentence has been discussed, whereas, the judgment referred to as PLD 2000 SC 354, is not traceable from the relevant page of the report.
17. So far as the question of convicting the acquitted accused in the appeal filed by the complainant party, is concerned, it does not require and detailed deliberation as the counsel for the complainant-appellant could not succeed to point out any major illegality, misreading or non- reading of evidence or departure from the settled principles of administration of criminal justice in the impugned judgment to convince this Court for interference.
18. Same like, the argument of the learned counsel for the convict-appellant that the material on the basis of which the conviction order against Sain Khan, convict-appellant has been passed, is not available because on the basis of same evidence, the other accused-persons have been acquitted. As for the appeal filed by the convict-appellant for his acquittal is concerned, has no substance in the light of the peculiar facts of the case. According to the century's old settled principles of administration of criminal justice, the Courts have to sift the grains from the chaff. It is not necessary that if a piece of evidence is disbelieved to the extent of one according to his assigned conduct in the prosecution story, the same cannot be believed to the extent of other accused against whom cogent, confidence inspiring evidence is available on record. In this case, the convict-appellant has been assigned a specific role which has been successfully proved by the prosecution. Whereas the role of other accused-persons is quite different, therefore, the version of defence counsel being incorrect is not acceptable.
Thus, both the appeals, one for convicting the acquitted accused filed by the complainant- appellant and the other for acquittal of the convict-appellant, having no substance to this extent are hereby dismissed.