'Muhammad Azam Khan, CJ.--This appeal under Section 25 of the AJ&K Islamic Penal Laws (Enforcement) Act, 1974, has been filed against the judgment of the Shariat Court of Azad Jammu & Kashmir dated 26.3.2013, whereby the appeal filed by the convict-appellant, herein, from the judgment of the District Criminal Court, Kotli has been dismissed and the reference filed by the District Criminal Court, Kotli for confirmation of death sentence as ' Qisas' has been answered in affirmative and death sentence has been confirmed.
2. A case under Section 302, 506 and 34, A.P.C. Was registered at Police Station 'Narr' against the convict-appellant and another on a report made by the Complainant-Respondent No,
2. After necessary investigation, challan was presented in the District Court of Criminal Jurisdiction, Kotli on 8th November, 2006. The District Court of Criminal Jurisdiction, Kotli through its judgment dated 16th July, 2010 acquitted the accused, Nazakat Hussain in the result of compromise effected between the parties, whereas, convicted and sentenced Raj Muhammad to death as ' Qisas' under Section 302, A.P.C. He was also ordered to pay compensation to the tune of Rs, 2,00,000/- (two lac) rupees under Section. 544-A, Cr.P.C.. To the legal heirs of the deceased and in case of non- payment of compensation, lie will further undergo simple imprisonment of six months. The convict- appellant was acquitted of the charge under Section 506, APC.
3. Ch. Muhammad Ilyas, Advocate, the learned counsel,, while arguing on behalf of the convict- appellant, submitted that the judgment of the Shariat Court as well as the trial Court is against law and the record. The learned counsel submitted that the prosecution failed to prove its case beyond the reasonable doubt. The prosecution has made a false and fabricated case against the accused-respondent. The learned counsel submitted that the eye-witnesses are related to the deceased and the complainant, therefore, their testimony cannot be relied upon for conviction. The occurrence is stated to have taken place in a thickly populated place but only related witnesses have been cited as witnesses. No independent witness has come forward in support of the prosecution version. Even the statements of the related witnesses do not corroborate the prosecution version. Their statements are self-contradictory. He argued that without independent corroboration, the death sentence cannot be awarded. The learned counsel further submitted that the prosecution has suppressed the true facts. The convict-appellant was also injured in the occurrence, which fact is proved from the medico-legal report of the convict-appellant brought on record by the prosecution. The prosecution has furnished any explanation, how the convict- appellant was injured. The learned counsel contended that there is no corroboratory evidence. The recovery of weapon of offence is not proved. The learned counsel further contended that the allegation levelled against the convict-appellant is that he fired with 12-bore gun, while crime- empties recovered from the place of occurrence are of LG. The learned counsel also argued that the prosecution has alleged a specific motive that the occurrence took place in pursuance of another incident, which took place at last evening. The motive has not been proved by the prosecution. It is fatal for the prosecution because if a specific motive is alleged and the prosecution fails to prove the same, the accused cannot be convicted without proving the same.
The learned counsel submitted that the convict-appellant was also injured and his injury has not been put to him in his statement recorded under Section 342, Cr.P.C.. Due to which the accused- respondent has been prejudiced and the conviction is not sustainable. The learned counsel pressed into service another argument that in the FIR, it is alleged that the convict-appellant fired at the deceased, twice, while in the Court's statement, the complainant stated that one fire missed the target and the deceased was injured by one gun-shot. This is a major contradiction and conviction cannot be based upon the statement of the complainant. Similarly, in the statements made by Nazim, Rafaqat, Muzaffar Iqbal and Muhammad Idress, witnesses, it has been stated that the first fire missed the target. The learned counsel also argued that the post-mortem was conducted at 4: p.m., whereas, the occurrence took place at 8:30 a.m. The intervening time was consumed in preparing a false and fabricated case. Lastly, he argued that the conviction cannot be based on the statement of witnesses, who suppressed the fact regarding the injury caused to the convict-appellant during the occurrence. He requested that the appeal may be accepted and the convict he acquitted of the charge. In alternate, he requested for conversion of death sentence into life imprisonment as Tazeer'. The learned counsel referred to the cases reported as Nazeer Ahmed us. Gehne Khan and others [2011 SCM R 1473], Khalid alias Khalidi & 2 others vs. The State [2012 SCMR 3271, Irshad Ahmed vs. The State [2011 SCM R 1190], Muhammad Nadeem vs. The State [2013 PCr.LJ 7011, Muhammad Yousaf and another vs. Tariq Mahmood and another [PLD 2008 SC (AJ&K) 61 and Muhammad Aziz vs. The State 12000 SCR 1 and [2013 P.Cr.LJ 1540].
' In the case reported as Nazeer Ahmed vs. Gehne Khan and others [2011 SCM R 14731, the accused was tried for the murder of Ahmed Karim. The Court convicted some of the accused and acquitted the others. The High Court acquitted the convicts on the ground that there is delay of 7/8 hours in lodging the FIR. The witnesses are chance witnesses and two eye-witnesses are residing at a distance of six to seven acres from the place of occurrence. It was a dark night occurrence and the source of light was allegedly a torch, which was not taken into possession and there was also a delay in conducting the post-mortem, The Supreme Court declined to interfere in the acquittal order.
' In the case reported as Khalid alias Khalidi & 2 others vs. The State 12012 SCMR 3271, the accused were convicted and awarded the death sentence by the trial Court on two counts. The High Court converted the sentence into imprisonment for life. In the case, the occurrence took place at 2:00 a.m., in the night time and the FIR was lodged at 4:00 a.m. The Doctor examined the injured persons at 4:00 a.m. But the post-mortem was conducted at 3:00 p.m., on the next day. On the basis of such delay, the Court concluded that the FIR was not lodged at the time shown to have been recorded. It is not reliable. It was also observed that the prosecution failed to produce the injured eye- witnesses and inference can be drawn that if the injured witnesses were produced, they might have not supported the prosecution version. It was further observed that the ocular account was not of such a character which could be relied upon to convict a person for capital punishment particularly, when there is no corroboration from any other independent evidence in the circumstances when the presence of eye-witnesses was not established at the place of occurrence at that time. Their statements were not believed. The accused were acquitted by the Supreme Court.
' In the case reported as Irshad Ahmed vs. The State 12011 SCM R 11901, the accused was tried and the trial Court convicted and sentenced him to death under Section 302 (b), P.C., which was confirmed by the High Court After re-appraisal of the evidence, the Supreme Court observed that the eye-witnesses were not only related but they are also chance witnesses, i,e,, one is the father of the deceased and the other is brother of the complainant and paternal uncle of the deceased. The occurrence had taken place far away from the houses of the eye-witnesses and they had stated that they have seen the occurrence when they were in search of the deceased. The Court concluded that the prosecution failed to prove its case beyond the reasonable doubt. The conviction was set aside. It was also observed that the delay in conducting the post-mortem is generally suggestive of a real possibility that the time was consumed by police in procuring and planting the eye-witnesses and in cooking up a story for prosecution before preparing police papers necessary for getting a postmortem/ examination of the dead-body.
' There is no case at page 1540 of the report referred as 2013 P, Cr.L.J.
1.540.
' The case reported as Muhammad Aziz vs. The State [2000 SCR 11, relates to bail matter. It is not relevant.
' In the case reported as Muhammad Nadeem vs. The State [2013 PCr.LJ 7011, the accused was convicted to life imprisonment in a murder. Case. On appeal, the High Court accepted the appeal and acquitted the accused on the ground that the case is based upon the circumstantial evidence. The deceased was the wife of the accused, who divorced her and she was found dead in the house locked from inside. The crime weapon was allegedly recovered on the pointation of the accused after about 30 months of the incident and the same was neither wrapped/sealed nor sent for examination to the Chemical Examiner. The clothes of the deceased were also not sent to Serologist for examination and report. The prosecution had withheld best available evidence of material witnesses, which raised the presumption that they would not have supported the prosecution. The statements of the, witnesses, who have last seen the accused in front of the house where the occurrence took place, recorded after a delay of 15 days. The amended challan was filed in the Court, where the names of two brothers of the accused were added, which proved that there is a malafide and ulterior motive on the part of the prosecution. The accused was acquitted by the High Court.
' In the case reported as Muhammad Yousaf and another vs. Tariq Mahmood and another [PLD 2008 SC (AJ&K) 6), the accused was challaned under Section 302, A.P.C. After the conclusion of the trial; the difference of opinion arose regarding the quantum of sentence. The learned Sessions Judge awarded the sentence of life imprisonment, while the other member of the District Court of Criminal Jurisdiction, awarded the death sentence to the accused. On reference, the Shariat Court awarded the sentence of 14 years' imprisonment Two appeals were filed in this Court. This Court dismissed the appeal filed by the prosecution and accepted the appeal filed by the accused and acquitted him of the charge on the ground that the case is of two versions. The Police failed to investigate the version put forward by the accused, therefore, it was not possible for the trial Court to decide that as to which version is correct The accused also sustained the injuries and was examined by the Doctor. The version put forth by the prosecution was not proved. The prosecution failed to prove its case beyond the reasonable doubt.
' In the case reported as Hafiz Muhammad Naseem (Muhammad Waseem alias Naseem) and another us. The State [2003 PCr.LJ 1563], the accused were tried by the special Court under Sections 302, 392, 34, PC and Section 7 of the Anti Terrorism Act, 1997. They were convicted to death and other sentences on two counts. The Supreme Court dismissed the appeal on the ground the FIR regarding the occurrence has been promptly registered. The chances of fabrication of a fictitious tail of occurrence after deliberation and consultation were ruled out. The Court held that the accused were caught red handed and the prosecution proved its case beyond the reasonable doubt. The appeal was dismissed and murder reference was answered in the affirmative.
4. While controverting the arguments, Raja Saadat Ali Kayani, Advocate, the learned counsel for the complainant, defended the judgment of the trial Court as well as the Shariat Court, while arguing that there is concurrent findings recorded by the trial Court and the Shairiat Court after appreciation of evidence, which cannot be disturbed by this Court. There are four eye-witnesses of the occurrence and their evidence is confidence inspiring. Mere relationship is no ground to discard the evidence of the witnesses. The convict-appellant has not controverted the manner of occurrence. The recoveries are proved. There is no proof that the accused was injured during the occurrence.
5. Mr. Mansoor Pervaiz Khan, the learned Advocate-General, for the State, defended the judgment of the Shariat Court on all counts and argued that the accused is nominated in the FIR, which was promptly lodged. He argued that the accused has been attributed specific role. There are four eye- witnesses of the occurrence. The place of occurrence and the time of occurrence are not disputed.
The recoveries are proved and corroborated the version of the eyewitnesses. The report of ballistic expert is affirmative. The judgment is based on evidence. The learned Advocate-General requested for dismissal of the appeal.
6. We have heard the learned counsel for the parties and perused the record.
7. Muhammad Razaq, Respondent No, 2 filed a written report at Police Station Narr at 10 a.m., alleging therein that at 8:30 a.m., he was present in his house when the convict-appellant, Raj Muhammad son of Lai Khan and Nazakat Hussain son of Allandad, while hurling abuses came in the street near to his house. Raj Muhammad, convict-appellant, was armed with 12-bore gun, while Nazakat Hussain was armed with ' sotif. The convict-appellant made two fires on Muhammad Rizwan, one after the other which hit Muhammad Rizwan on the left leg and arms. He fell down.
Nazakat Hussain remained provoking the accused that do not let spare Muhammad Rizwan. The accused ran away from the place of occurrence. The occurrence is witnessed apart from the complainant by Muhammad Nazim, Rafaqat and Mazhar Hussain. The motive behind the occurrence as alleged is that on the last evening, an altercation took place between the nephews of the complainant and the grand-children of the convict-appellant, Raj Muhammad. The convict- appellant committed the offence due to this grudge. The injured, Muhammad Rizwan has died in the way, while he was being brought to Narr hospital. 'On this report, a case under Sections 302, 506 and 34, A.P.C. Was registered at. Police Station Narr against the convict-appellant. After completion of investigation, the challan was presented in the District Court of Criminal Jurisdiction, Kotli on 8th November, 2006. The convict-appellant denied the allegation levelled against him in the statement under Section 242, Cr.P.C. For proving its case, the prosecution produced four eye-witnesses, i,e,, the complainant, Muhammad Razaq, Muhammad Nazim, Rafaqat and Mazhar Hussain. It was forcefully argued by the counsel for the convict-appellant that all the four eyewitnesses are closely related to the deceased and the testimony of the related witnesses cannot be relied upon. The learned counsel also argued that the witnesses are not trust-worthy because it is proved from the record that the convict-appellant was injured during the occurrence. The witnesses have suppressed the injury of the accused, therefore, such witnesses, who suppress the real facts or real story, cannot be believed for convicting the accused-appellant The trial Court and the Shariat Court believed all the four eye-witnesses and convicted the accused-appellant. Although, it is not the duty of the Court to re apprise the evidence but since the trial Court has convicted and sentenced the convict-appellant to death as ' Qisas'and the Shariat Court has confirmed the death sentence, therefore, for doing complete justice, we have minutely perused the statements of all the four eye-witnesses. It is true that the witnesses are Inter se and related to the deceased but the evidence of a witness cannot be discarded merely on the basis of relationship. The related witness is as competent a witness as any other witness provided his evidence is confidence inspiring and he has no motive to implicate the accused in a false case. The defense has neither suggested any enmity to the witnesses with the accused nor has any such proof been brought on the record. Mere some suggestions cannot be made basis for declaring the witnesses as inimical towards the accused. This Court in a case reported as Mehtab Khan vs. The State [PLD 1979 SC (AJ&K) 23], while dealing with the question of appreciation of evidence 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 circumstances 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 conviction, especially against the background of long standing feuds leading to somewhat similar incidents in the past."
' The same view was reiterated by this Court in a case reported as Mehrban vs. The State [PLD 1978 SC (AJ&K) 96], it was observed as under:-- " The mere fact that a witness is related to the deceased, is not per se enough to discredit the witness if it is found that in the circumstances of the case such a witness's presence and witnessing the occurrence was natural Similarly, an eyewitness's evidence cannot be rejected outright merely because such a witness belongs to one party or the other involved in a factional dispute; if otherwise such a witness establishes his veracity. Of course these factors may put the Court on alert for close scrutiny of the evidence of such witnesses, but this by itself is not sufficient to discard their evidence if otherwise they are found to be witnesses of truth.............................................................................................. "
' In another case reported as Muhammad Tahir Aziz ps. The State and another [2009 SCR 71], it has been held as under:-- "21 It is well settled principle of law that mere relationship is no ground for discarding the evidence of a prosecution witness, unless and until his enmity is established with the accused person......... "
8. It is not the case of the defense that the occurrence has not taken place in the manner as it has been alleged. Had the defense put a counter version that the occurrence has not taken place in the manner as alleged by the prosecution and the accused was attacked upon by the complainant parts in the result of which he was injured, then the argument was available to the defense that the accused was injured in the occurrence and the prosecution witnesses suppressed the injuries of the accused. The accused was arrested on the day of occurrence and the injury form was prepared by the police and he was examined by the Doctor in the civil hospital at 'Narr'. He had a cut mark on the back of his neck, swelling on his mouth, scratches and marks of blunt weapon. All injuries are simple in nature. The occurrence took place at 8:30 a.m. He was arrested on the same day. The accused was arrested after 4/5 hours of the occurrence. Whether he was injured after the occurrence or during the occurrence cannot be ascertained as the convict-appellant has not taken the specific version. Had the accused put a counter version that he was got injured by the complainant party then the conduct of the witnesses was worth consideration that they are suppressing the true facts. Mere injures on the person of the convict-appellant cannot be attributed to the complainant party that the same have been caused by the opposite party. In absence of specific version of the accused that the occurrence did not take place in the manner as alleged by the complainant rather the occurrence was took place in a different manner and the accused was attacked by them, it cannot be said that the witnesses have deliberately suppressed the injury of the accused-appellant.
9. There may be the cases, where the accused specifically challenged the manner of occurrence, time of'occurrence and advances a counter version, in that case the medico-legal report can lend a support to his version as held in the case titled Muhammad Yousaf and another us. Tariq Mahmood and another [PLD 2008 SC (AJ&K) 61, wherein the accused had put a counter version before the Police. The Police failed to investigate the counter version. This Court observed that at the Initial stage when the accused put a counter version then it was obligatory for the investigating agency to investigate the matter there is no such situation in the present case as the convict has not taken a counter version. The argument is not available to the convict-appellant. The evidence of the witnesses appears to be confidence inspiring and trustworthy. The trial Court and the Shariat Court have correctly placed the reliance on the evidence of the eye-witnesses.
10. It was forcefully argued by the counsel for the convict-appellant that there is no corroboratory evidence and conviction cannot be based upon the evidence of related witnesses. As it has been observed hereinabove that mere relationship per se is no ground to discard the evidence of the eye-witnesses. If a case primarily is based upon the ocular evidence, it is not necessary to demand that there must be corroboratory evidence. It was observed in a case titled Mehtab Khan vs. The State [PLD 1979 SC (AJ&K) 231, as under: "(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."
' Similarly, in a case reported as Abdul Rashid and 3 others vs. Abdul Ghaffar and 5 others [2001 SCR 2401, it was observed at page 251 of the report that if the ocular evidence is found trustworthy that cannot be rejected merely because there was some variation between the prosecution witnesses and the medial evidence: "9, ...The learned Advocate-General has rightly pointed out that the FIR was not given by an eye- witness but by Muhammad Araf who himself was informed by Muhammad Saeed son of Hassan Muhammad who in turn was apprised of the occurrence by eye-witnesses. Thus the FIR was given on second hand information and need not have contained all the details of the occurrence. It may be, as contended, that while recording the statements of these eye-witnesses, the Investigating Officer did not enquire from them about the injuries on the person of Ghulam Hussain and it was only in the Court when such enquiry was made that they offered the explanation. It may be, at the most, a case of suppression of the injuries on the person of Ghulam Hussain or a case of defective investigation where investigating agency did not care to enquire from the witnesses about the injuries of Ghulam Hussain; but this fact, in our view, is not sufficient to discredit the credibility of these witnesses merely on the ground that the FIR or their statements under Section 161, Cr.P.C. Do not contain the explanation of Ghulam Hussain's injuries ' Again it, was observed at page 253 in the referred report as under:-- "13. ....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 a party may rope innocent persons in a crime along with a real culprit but it is not natural that a party would leave the real culprit and instead falsely implicate innocent person...."
' Despite the fact that the witnesses are natural, trustworthy and their evidence is confidence inspiring, which do not require corroboration despite there is corroborative evidence, like, recovery of weapon of offence on the pointation of the accused, the recovery of crime-empties and the report of ballistic expert which shows that the crime-empties have been fired from the same weapon of offence, i,e,, the 12-bore gun recovered on the pointation of the accused.
11. The counsel for the convict-appellant argued that it is alleged that the 12-bore gun was used in the offence, whereas, the crime-empties recovered from the place of occurrence are of LG.
Probably, the learned counsel has no knowledge about the fire-arms. The LG cartridges used in 12- bore gun and the report of ballistic expert speaks that the crime-empties, marked as ' C-1' and ' C- 2' were fired from 12-bore gun, recovered from the accused. The place of occurrence is not disputed. The site-map contained the necessary details showing the place where the deceased was standing, the place from where the accused fired upon the deceased, the place where the other accused Nazakat Hussain was standing and the place from where the witnesses saw the occurrence. The blood-stained clay was recovered from the place where the deceased is shown to have been standing at the time of occurrence. The clothes of the deceased were recovered after the post-mortem. The licence of the recovered gun which is in the ownership of the accused was produced by his son to the Police. In the post-mortem report, the Doctor has opined that the deceased died due to fire-arm injury. The time of occurrence is not disputed.
12. We have also considered the argument of the learned counsel that the motive for commission of offence was alleged by the prosecution which has not been proved. The complainant alleged in the FIR that in the last evening, an altercation had taken place between his nephew and grand- children of the accused. He has taken the same version in the Court's statement and the version is proved from the statement of the complainant. In the case titled Abdul Rashid and 3 others us.
Abdul Ghaffar and 5 others (2001 SCR 240], has observed that it is settled principle of law that if a case is primarily based on ocular evidence, it is not necessary to prove the motive. It was observed as under:-- ' 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."
13. Firstly, the motive has been proved by the statement of the complainant and if for the sake of argument the motive is not proved, then too, it will not affect the prosecution case because the prosecution's case is based on ocular testimony of the witnesses, whereas, the evidence is confidence inspiring and trust-worthy.
14. It was also argued by the counsel for the convict-appellant that the complainant in the FIR has stated that the accused fired two shots, whereas, the witnesses have stated in the Court that the first shot missed the target and second shot hit the deceased. This creates a doubt in the prosecution story. There is no contradiction between the FIR and the statements of the witnesses.
The version taken by the complainant in the FIR, is supported by the witnesses that two shots were fired. This detail was not mentioned in the FIR that first short missed the target, while the second shot hit the deceased. The witnesses have explained that the first shot missed the target, while the deceased was hit by the second shot. The death occurred due to fire-arm injury, which corroborates the version put forth by the witnesses.
15. The trial Court and the Shariat Court committed no illegality in appreciating the evidence. The prosecution proved its case against the convict-appellant beyond any doubt and the trial Court correctly convicted the appellant and the Shariat Court confirmed the death sentence in a legal manner.
16. We have also considered the prayer of the counsel for the convict-appellant that if the convict is not acquitted of the charge then j the death sentence may be converted into life imprisonment.
The Court has power to convert the death sentence if the case is made out from the evidence as such. The place, time and manner of occurrence have been proved by the prosecution from the direct evidence of the eye-witnesses. Although, the injury reports of the accused have been brought on record, which show some simple injuries on the person but the accused has not put any counter version that he was injured by the complainant party during the occurrence or he was attacked by the other party. In absence of the counter version or any other specific position, mere injuries on person of accused cannot be considered mitigating circumstance., There is no mitigating circumstance for converting the death sentence into life imprisonment.
' The result of above discussion is that finding no force in this appeal, it is hereby dismissed.