M. Tabassum Aftab Alvi, J.--As the captioned Appeal and Reference arise out of the same judgment of Additional District Court of Criminal Jurisdiction, Poonch Rawalakot, dated 12.03.2011, whereby Shams Khan, convict-appellant, was awarded death sentence as Visas', hence, these were clubbed, therefore, the same are decided through the instant consolidated judgment.
2. The precise facts leading to the instant Appeal and Reference are that Abdul Bari, complainant, lodged a written report at Police Station, Rawalakot, regarding murder of his cousin, Muhammad Akram, on 09.05.2002. The complainant alleged in the report that he was a conductor with Wagon No, 946/AJK. On 09.05.2002, he carried passengers from Khaigallah to Kahokot and at return from Kahokot bazaar he stayed there and sent another conductor with the wagon. At about 3:00 p.m., he alongwith his cousin Muhammad Akram, was sitting at the shop of Muhammad Tariq welder, meanwhile, Shams Khan, accused, arrived there, who started hurling abuses to Muhammad Akram, attacked upon him with a `Chhurri' and caused consecutive blows on his left ear and back. He alongwith Muhammad Tariq and Muhammad Hafeez, when tried to set free Muhammad Akram, then Shams Khan, accused, straightened `Chhurri' towards them and later on fled away while waving the same. Thereafter, Muhammad Akram, injured,, was being brought towards C.M.H.
Rawalakot, however, on the way, he succumbed to the injuries. The occurrence was witnessed by complainant alongwith Muhammad Tariq, Muhammad Hafeez and many other people present in the bazaar. The motive behind occurrence was stated that one month prior to occurrence a quarrel took place between Muhammad Akram, deceased, and Muhammad Jameel, brother of accused.
3. As per report of complainant, a case was registered against Shams Khan, convict-appellant, in offence under Section 302, A.P.C, who was apprehended by police on the same day, i,e, 09.05.2002.
The dead body of Muhammad Akram, deceased, was brought in C.M.H, Rawalakot, where his post- mortem was conducted and following injuries were found on his person:-- (i)Incised laceration of 8cm which started from Lt. shoulder joint and moving towards Lt. trapezes.
(ii)Incised laceration of 5cm which is 2cm below the Injury No, 1.
(iii)(iii) Incised laceration of 6cm which is 8cm below the Injury No, 2.
(iv) Incised laceration of 5cm which is 6cm below the Injury No, 3.
(v)Laceration of 8 cm which is cutting the lower part of the ear and part of the neck which is directly connected with lower part of ear.
(vi) Bursting laceration of right index finger cutting whole finger.
4. After necessary investigation, Challan No, 80/2002, in offences under Section 13/20/65, Arms Act and Challan No, 97/2002, in offence under Section 302, A.P.C, were submitted before District Court of Criminal Jurisdiction, Rawalakot, which was entrusted to. Additional District Court of Criminal Jurisdiction, for hearing and disposal under law, on 15.06.2002. The accused was examined on 28.07.2002, as required by Section 242,Cr.P.C., who denied the guilt. Thereafter, prosecution produced 17 witnesses, out of 20, in support of its case. The trial Court put salient feature of evidence to accused on 14.07.2005, as required by Section 342, Cr.P.C., who once again denied guilt and deposed that Muhammad Akram and Abdul Bari, attacked and caused him injury. The Court below after conclusion of trial, recorded judgment dated 19.09.2005, through which, accused was awarded death sentence as Visas' under Section 302 (A), A.P.C. as well as sentence of six months simple imprisonment under Section 13/20/65, Arms Act. The aforesaid judgment was challenged before this Court through Criminal Appeal No, 62/2005, on 26.09.2005, whereby the case was remanded to the trial Court with the direction to reexamine the accused as required by Section 342, Cr.P.C., vide order dated 08.03.2007. The trial Court, after re-examining the accused under Section 342, Cr.P.C., on 03.12.2007, again recorded judgment dated 30.03.2009, through which, accused was awarded death sentence as 'Tazir under Section 302-B, A.P.C. alongwith the sentence of six months simple imprisonment under Section 13/20/65, Arms Act. Against the aforesaid judgment a Criminal Appeal No, 07/2009 dated 07.04.2009, was filed before this Court. However, the case once again was remanded, as the trial Court could not put any question about Exh.PM and Exh.PM/1 while recording statement of accused under Section 342, Cr.P.C., vide order dated 23.09,2010. Thereupon, the statement of accused under Section 342, Cr.P.C. was third time recorded by Court below on 30.12.2010. The convict-appellant also got recorded his statement under Section 340(2), Cr.P.C. on 05.01.2011. The Court below after conclusion of trial, awarded death sentence as Visas' to convict-appellant under Section 302(A), A.P.C. alongwith sentence of six months simple imprisonment under Section 13/20/65, Arms Act, vide the impugned judgment dated 12.03.2011.
Now, Criminal Appeal No, 17/2011, is filed by Shams Khan, convict-appellant and Criminal Reference No, 16/2011, has been filed by Additional District Criminal Court, Rawalakot, for confirmation of death sentence, which are subject matter of the instant judgment.
5. The learned Counsel for convict-appellant as well as the learned State Counsel submitted that written arguments have already been filed, hence, considering the same, judgment may be pronounced.
6. Barrister Hamayun Nawaz Khan, the learned Counsel for Shams Khan, convict-appellant, submitted in written arguments that a false case was registered against the convict and prosecution failed to prove its case on required standard; therefore, the impugned judgment is not sustainable under law. He contended that eye-witnesses, Abdul Bari, Muhammad Tariq and. Abdul Hafeez, made material. improvements in their Court statements, as compared to their statements recorded under Section 161, Cr.P.C., which made the prosecution case highly doubtful. The learned Counsel maintained that motive behind occurrence was stated to be a quarrel, one month prior to occurrence, between Muhammad Akram, deceased, and Muhammad Jameel, brother of convict- appellant, however, prosecution failed to prove the same, as motive was feeble and flimsy, hence, the conviction was unwarranted as such. He further submitted that motive although not necessary to plead but once set up, then prosecution has to prove it and in failure thereof an adverse inference has to be drawn. The learned Counsel pointed out that prosecution witness Abdul Bari, is close relative whereas Muhammad Tariq, is related and inimical witness, who suppressed the factum of injury of convict and in such like cases where injuries of convict-appellant are not explained by prosecution, the convict entails acquittal. He contended that prosecution witnesses also failed to give any reason that why they did not make any attempt to save the victim when he was allegedly attacked by convict-appellant. He submitted that recovery of `Chhurri' is fake one, because as per F.I.R. appellant escaped from the place of occurrence while waving Chhurri' , whereas in their statements P.Ws deposed that convict-appellant after committing offence kept `Chhurri in the van, which is a material contradiction in prosecution case. The learned Counsel further contended that Muhammad Hafeez, P.W. deposed that police arrived at the place of occurrence after 01 hour and 30 minutes, whereas Muhammad Tariq, P.W, deposed that van was recovered after 10 minutes of police arrival and the police took 'the van to Rawalakot, while in contradiction to other witnesses, Shabbir, P.W. said that police went at the place of occurrence at 8:30 p.m. and recovered the van, who also admitted that the van was already in the possession of police before making the alleged recovery. He maintained that Yasin Baig, investigating officer, attempted to conceal the fact of appellant's injury and admitted that before recovery the van was in possession. The learned. Counsel stressed on the standard of proof for death and submitted that the report of `Muzakki' is not according to the required standard, because nothing was said about the witnesses that they are `Aadil'. He further contended that `Aadil' is a person whose good deeds are more than bad deeds and who abstains from major sins. i,e, shirk, theft & Zina etc. He maintained that `Muzakki'. should make a note about those persons from whom he got the verification of the witnesses but he utterly failed to give any information about those persons, hence, in light of the report and contradictory statements of all the witnesses, the instant case is not a case of Visas'.
The learned Counsel contended that appellant was injured as result of attack of deceased, who was stronger as compared to convict-appellant and in fact deceased was aggressor whereas appellant only acted in his self defense. The learned Counsel contended that Muhammad Hafeez Khan, P.W. is not an eye-witness, who deposed that appellant made a confessionary statement with him in presence of many people including Deputy Commissioner and the aforesaid witness also suppressed the injury of appellant. The learned Counsel further submitted that when a person is allegedly a first time offender, even he never been involved in a minor offence, there is no apprehension that such a person is Fasad on the earth, hence, death penalty cannot be awarded as `Tazie. The learned Counsel stressed on the point that there are various mitigating factors that need to be considered while deciding the quantum of sentence i,e, the appellant is 26 years of age (was 16/17 years old when incident happened), he is previous non-convict, there is no motive established and .there is no premeditation. He further emphasized that when incident occurs of sudden affair in heat of passion without premeditation, death sentence can be reduced to life imprisonment, as per precedents of superior Courts. The learned Counsel agitated that if this Court arrives at the conclusion that the case is not of an acquittal, then the death sentence may be converted into imprisonment as the instant case is not of death penalty under Visas' or `Tazie in the light of precedents of superior Courts. He lastly craved for acceptance of appeal and acquittal of convict-appellant, who relied upon the following case law: (i)[1976 P.Cr.L.J 243 (DB)1 (ii)[PLD 1979 SC (AJK) 23].
(iii)[PLJ 1982 Cr.C. (Rwp)220] (iv)[1993 SCMR 1376].
(v)[1993 SCMR 1660].
(vi)[PLD 1994 SC 259].
(vii) [1994 SCMR 1096],
(viii) [1995 P.Cr.L.J 189].
(ix)[PLD 1995 SC 590].
(x)[1995 P.Cr.L.J 1532].
(xi)[1996 MLD 1325 DB].
(xii) [1999 P.Cr.L.J 439].
(xiii) [1999 MLD 891 DB].
(xiv) [2004 SCMR 8].
7. Conversely, Raja Ayyaz Ahmad, the learned State Counsel contended in written arguments that the learned Advocate for convict-appellant mostly challenged the impugned judgment on the grounds that witnesses made improvements in their statements, the motive was not proved, the witnesses were related, the recovery was fake, no attempt was made by witnesses to rescue the deceased and failed to prove that which party was aggressor. He submitted that the occurrence took place in a broad daylight and out of three eye-witnesses, two were shopkeepers and their presence was natural at the spot. The learned State Counsel emphasized that presence of complainant, accused, deceased and eye-witnesses at the place of occurrence, time and place of occurrence are admitted, and in such like situation when facts are admitted then the 'objection that eye-witnesses are relatives of deceased and their evidence is not credible, has no value, as evidence of related witnesses could not be disbelieved or discarded merely on the basis of relationship. The learned Counsel submitted that all the prosecution witnesses corroborated the prosecution story on major allegation of murder against convict, hence, minor discrepancies in the statements of witnesses are not fatal to the prosecution case. The learned Counsel argued that occurrence was of daylight, the eye-witnesses were present and the accused was identified, hence, in such like situation, motive alleged by the prosecution was not necessary to be proved.
The learned Counsel contended that recovery of `Chhurri' was made from van and in this regard eye-witnesses clearly mentioned in their statements that after committing offence, accused tried to switch on his van, failing which, he kept `Chhurri' in the van and ran away, which later on, was recovered on the pointation of accused. He agitated that even otherwise facts of the case have been proved by prosecution, hence, the recovery of the weapon of offence did not shake the case of prosecution. The learned Counsel agitated that it Was proved by the prosecution evidence that accused was armed with `Chhurri', hence, he was not captured by the witnesses, when he attacked upon the deceased. He submitted that contention of the learned Counsel for convict that victim was aggressor, is misconceived, as the complainant in F.I.R. as well as in his statement, clearly mentioned the role of convict and no remarkable injury was proved on the body of accused. The learned Counsel contended that if occurrence took place otherwise as alleged by the prosecution, then the accused has to prove it after presenting the witnesses of locality, but he could not produce a single witness, hence, convict remained failed to rebate the version of prosecution. He further maintained regarding age of convict that defense himself admitted that age of accused was 16/17 years at the time of occurrence and now he is 26/27 years old, hence, no benefit of age can be extended in his favour. He contended that according to Sections 82, 83, APC, an accused under 12 years of age, is called child and above 12 years no exemption was given, so a person at the age of 16 years is sufficient mature. The learned Counsel emphasized that contention of the learned Advocate for convict-appellant regarding purgation is baseless, as the `Muzakki' clearly mentioned in first purgation report that witnesses are `Aadir, who abstain from lies and offer prayers so, it is sufficient for witnesses to such like character, hence the purgation is also according to law and defense did not point out any bad moral activity of the witnesses. The learned State Counsel finally craved for dismissal of appeal filed by convict and prayed for confirmation of his death sentence. He referred to and relied upon the following case law:-- (i)[PLD 1966 Peshawar 97].
(ii)[1977 SCMR 175].
(iii)[PLD 1979 SC (AJ&K) 23].
(iv)[PSC 1985 905].
(v)[1997 SCR 206].
(vi)[2001 SCR 240].
(vii) [2005 SCR 272].
(viii) [2007 SCR 1].
(ix)[2010 SCR 113].
(x)[2014 SCR 112].
(xi)[2014 SCR 121].
(xii) [2014 SCR 136].
8. We have given our dispassionate thought to the written arguments filed by the learned Advocate for convict-appellant as well as the learned State Counsel.
9. The prosecution case, as per F.I.R.; is that Abdul Bari, complainant, alongwith his cousin Muhammad Akram, was sitting at the shop of Muhammad Tariq welder, on 09.05.2002, meanwhile, at about 3:00 p .m., Shams Khan, accused, arrived there, who started hurling abuses to Muhammad Akram, attacked upon him with a `Chhurri' and caused consecutive blows on his left ear and back.
The complainant alongwith Muhammad Tariq and Muhammad Hafeez, when tried to set free Muhammad Akram, then Shams Khan, accused, straightened `Chhurri' towards them and later on fled away while waving the same. Thereafter, Muhammad Akram, injured, was brought towards C.M.H. Rawalakot, however, on the way, he succumbed to the injuries. The occurrence was witnessed by complainant alongwith Muhammad Tariq, Muhammad Hafeez and many other people present in the bazaar. The motive behind occurrence was stated that one month prior to occurrence a quarrel took place between Muhammad Akram, deceased, and Muhammad Jameel, brother of convict-appellant 10.The prosecution produced 17 witnesses, out of 20, in support of its case. There are three eye- witnesses in the instant case namely. Abdul Bari, complainant, (P.W.1), Tariq Hussain (P.W.2) and Abdul. Hafeez (P.W.3). The statements of the aforesaid eye-witnesses were recorded by the trial Court on 04.11.2002, 18.08.2003 and 03.12.2003, respectively. We have minutely gone through the evidence of the aforesaid eye-witnesses. They are unanimous on the point that convict, having been armed with `Chhurri', arrived at the spot and inflicted consecutive blows upon the body of Muhammad Akram. The deposition of eye-witnesses regarding infliction of consecutive blows upon the body of deceased, when compared to the post-mortem report, it reveals that Muhammad Akram, deceased, sustained following injuries on his person:-- (i)Incised laceration of 8cm which started from Lt. shoulder joint and moving towards Lt. trapezes.
(ii)Incised laceration of 5cm which is 2cm below the Injury No, 1.
(iii)Incised laceration of 6cm which is 8cm below the Injury No, 2.
(iv)Incised laceration of 5cm which is 6cm below the Injury No, 3.
(v)Laceration of 8cm which is cutting the lower part of the ear and part of the neck which is directly connected with lower part of ear.
(vi) Bursting laceration of right index finger cutting whole finger.
So, the infliction of repeated blows of `Chhurri' to Muhammad Akram, deceased, was established through evidence of eye-witnesses as well as medical evidence. Dr. Muhammad Nadeem (P.W.12) also appeared in the witness box, who fully corroborated the post-mortem report through his statement recorded on 4.1.2005. Thus, prosecution story in respect of causing repeated `Chhurri' blows by convict to victim is fully corroborated by evidence in respect of which findings recorded by the trial Court are approved.
11.It would be worthwhile to observe here that the instant case was twice remanded for examining accused under Section 342, Cr.P.C. Thereupon, the statement of accused under Section 342, Cr.P.C. was third time recorded by the Court below on 30.12.2010. However, convict-appellant also got recorded his statement under Section 340(2), Cr.P.C. on 05.01.2011, wherein, he deposed that his vehicle was stopped by Muhammad Akram, who pulled him down and inflicted `Chhurri' blow. He further deposed that he did not inflict `Chhurri' blow, rather Muhammad Akram, deceased, inflicted `Chhurri' blow upon him. In this manner, Shams Khan, appellant has admitted his presence with Muhammad Akram, deceased, at the spot, thus, prosecution story duly proved by un-impeached confidence inspiring testimony of complainant corroborated by the evidence of other eye- witnesses.
12.The contention of the learned Counsel for convict-appellant that purgation of witnesses was not conducted, as per requisite standard, is misconceived. A scrutiny of record reveals that trial Court conducted purgation of witnesses twice; firstly, on 13.09.2005 and secondly on 17.02.2009. in second purgation report, the 1 word `Aadil' was not used whereas in first purgation report, it was clearly mentioned that witnesses were found `Aadil. Now it is to be determined that whether trial Court was justified to conduct second purgation in presence of earlier one. A Qazi may conduct purgation of the witnesses either publicly in the Court or secretly outside the Court, however, in order to avoid creation of bad blood and disturbance of peace in society, the eminent jurists of Islamic Fiqa have commented secret purgation of a witness. So the method for conducting purgation is that the Qazi writes a secret private letter to 'Muzakki', the person who has to conduct purgation, describing to him the full names ' parentage and addresses etc. of the witnesses, the title of the case and the matter involved therein. The 'Muzakki' after due enquiry returns his findings in a sealed letter privately. It may be observed here that purgation of the witnesses has to be .done after and not before they have given their evidence, as the requisite scrutiny under `Sh ara', about the witnesses being `Aadir, arises only after their evidence has been recorded and not before. In the instant case, evidence of prosecution witnesses was recorded from 04.11.2002 to 05.07.2005 and the trial Court sought purgation of witnesses on 13.09.2005, which means, the same was sought after recording prosecution evidence, wherein, as per report of `Muzakki', the witnesses were found `Aadir. In such state of affairs, in presence of earlier purgation report, there was no need to conduct second purgation by trial Court on 17.02.2009, which was rightly not relied upon by the Court below.
13.The argument of the learned Counsel for convict-appellant, regarding fake recovery of `Chhurri' and related witnesses is also taken into consideration. Muhammad Yunus (P.W.5) and Muhammad Shabbir (P.W. 6), are recovery witnesses, who have corroborated the prosecution story and clearly deposed that on the pointation of convict, a `Chhurri' was recovered from the van owned by convict. A study of their statements reveals that no contradiction was pointed out by defense side, which could cause dents in the prosecution case. It is pertinent to observe here that although the aforesaid witnesses are relatives of deceased, but it is settled principle of law that mere relationship is no ground to discard evidence of a related witness, however, on account of enmity a witness can be treated an interested witness. In such state of affairs, relationship of witnesses of recovery memo is no ground to reject their testimony. The recovered `Chhurri' was sent to Chemical Examiner for analyses, who opined that the same was stained with human blood.
The argument of the learned Counsel for convict-appellant that recovery of `Chhurri' is fake I- one, because, as per F.I.R., appellant escaped from the place of occurrence while waving `Chhurri', whereas, according to statements of eye-witnesses, appellant after committing offence kept `Chhurri' in the van indicated material contradiction in prosecution case, cannot be given weight, as the purpose of F.I.R. is to set in motion the I investigating agency and it was not necessary to incorporate each and every circumstance therein; hence, the contention is turned down.
14.Now we take up the contention of the learned Counsel for convict-appellant that motive set up by the prosecution was not proved, hence, extreme penalty of death was not warranted. We are aware that motive plays an important role in the case of circumstantial evidence and in the case of direct evidence it is not essential to prove motive. However, keeping in view the peculiar facts and circumstances of the instant case, the point of motive is taken into consideration. A perusal of F.I.R. reveals that complainant alleged motive that a month prior to occurrence, a quarrel took place between Muhammad Akram, deceased, and Muhammad Jameel, brother of convict. Abdul Bari, complainant, deposed in earlier part of his Court's statement that a quarrel took place between Muhammad Akram, deceased, and Jameel, a month prior to occurrence, however, in latter part of his statement, he changed his version to the extent that an altercation took place between them. He further deposed that he did not tell the police about quarrel, rather told about an altercation. He also accepted that his version regarding quarrel was not recorded as per his expression. The prosecution produced another witness Muhammad Imtiaz (P.W.11), to prove motive, who is maternal uncle of victim. He also did not support the contents of F.I.R., through which a quarrel took place, rather he deposed that an altercation took place between Muhammad Akram, deceased, and Muhammad Jameel, brother of convict. He further stated that he cannot depose the reason for altercation. As per assertion of the aforesaid witnesses, the third P.W. was Muhammad Naeem (P.W.10), who witnessed previous altercation, however, he was not produced by the prosecution to prove motive. A minute perusal of Challan No, 80/2002, which was submitted in offences under Section 13/20/65, Arms Act, against the convict, reveals that during investigation a resentment was found between Muhammad Akram and convict, and not between victim and brother of convict. We are aware that it was not necessary for prosecution to set up motive for murder, however, once it is set up, the prosecution has to prove it and in failure whereof an adverse inference can be drawn against prosecution. Hence, the motive alleged by prosecution could, not be established in presence of the aforesaid contradictions in F.I.R., statements recorded under Section 161,Cr.P.C. and Court's statements of witnesses, which remained shrouded in mystery including possibility of deceased's family honour. It is worthwhile to observe here that motive though not a sine-qua-non for bringing the offence of murder at home, however, it has importance regarding the quantum of sentence and where the motive is shrouded in mystery then the extreme penalty of death is not warranted, rather life imprisonment is considered sufficient to meet the ends of justice. The aforesaid view finds support from an illuminating precedent of the apex Court in case reported as Muhammad Khurshid Khan v. Muhammad Basharat & another (2007 SCR 1), wherein, the following principle was enunciated: "It is a well settled principle of law that where the motive for the offence is shrouded in mystery then the extreme penalty of death is not warranted. The sentence of life imprisonment should be sufficient to meet the ends of justice. This view also finds support from a case reported as Muhammad Ali V. The State [1988 P.Cr.L.J. 307]. It is a celebrated principle of law that where the motive for the offence is either not proved or not satisfactorily established, it is a circumstance where the extreme penalty of death is usually avoided and lesser penalty of life imprisonment is awarded. This view finds support from the cases reported as The State V. Bahadur and another [1987 P.Cr.L.J. 1689] and Ghulam Hussain V. The State [1987 P.Cr.L.J. 1812)."
15. The learned Counsel for convict-appellant emphasized on the point that prosecution witnesses suppressed injury of convict and did not explain as to how he sustained the same, so extreme penalty of death may not be awarded to convict. A perusal of record reveals that Shams Khan, convict-appellant, also sustained injury during occurrence, who was got examined from doctor in CMH Rawalakot, on 09.05.2 002. The doctor found the following injury on his hand:-- (i)"An incised laceration between left thumb and rest of figures measuring 8cm."
Although the aforesaid injury, was simple in nature, however, the same raises question that why the complainant and witnesses did not depose about it in F.I.R. as well as in statements recorded under Section 161, Cr.P.C., and later on, they conceded in their Court's statements that convict also received injury at his hand. So, infliction of injury on the hand of convict attracts attention of this Court to consider the quantum of sentence, especially in the circumstances when prosecution witnesses have not explained about the injury caused to convict. Therefore, in such like cases, where convict also receives injuries, for safer dispensation of justice the death penalty is avoided.
The aforesaid view is fortified from a case reported as Shabbir Ahmad V. The State & another (1997 SCR 206), wherein, it was held as under:-- "Although the reasons recorded by the Shariat Court for altering the sentence from death to life imprisonment have not been found sustainable by us yet after anxious consideration we have also reached the same conclusion about quantum of sentence. The presence of injuries on the person of Shabbir Ahmad have not been found to have any bearing on the question of the guilt of convict.
However, the injuries in the circumstances of the case do have bearing on the question of the sentence. Although Injuries on the person of Shabbir Ahmad have not been suppressed by the prosecution but the prosecution has not satisfactorily explained as to how the injuries were caused.
The Shariat Court has observed that abrasions on Shabbir Ahmad might have been caused when, as stated by P.W. Habib-Ullah, he jumped from a higher place while running away from the place of occurrence while the incised wound might have been caused while inflicting injuries to Abdul Rehman with `Churri'. In our view the explanation is not fully convincing and does not remove the doubt that there might have been an altercation or quarrel prior to causing of `Churri' injuries to Abdul Rehman during which Shabbir Ahmed may have received the injuries. In the circumstances we are of the opinion that for safer dispensation of justice it will be appropriate not to impose the extreme penalty of death and the sentence of life imprisonment will meet the ends of justice as has been order by the Shariat Court."
16. When the versions of prosecution and defense, in this regard, are taken into juxtaposition, it appears that prosecution witnesses at first instance suppressed injury caused to the convict- appellant. The mere fact that injury on the person of accused was not explained would not bring the case within the ambit of self-defense, however, the same factum can be considered for the quantum of sentence.
17.The authorities cited by the learned State Counsel are distinguishable from the peculiar facts and circumstances of the instant case; therefore, need not to be discussed in detail.
18. The crux of above discussion is that Shams Khan, convict-appellant, is connected with the commission of murder of Muhammad Akram, deceased. However, keeping in view the overall circumstances of the case alongwith non-proving of motive, which remained shrouded in mystery including possibility .of deceased's family honour, and the, suppression of injury caused to him, this Court has bent upon to award lesser punishment instead of extreme penalty of death. Thus, by partly accepting the Appeal filed by convict-appellant, death sentence is altered into life imprisonment. However, the sentence awarded under Section 13/20/65, Arms Act, is sustained. The benefit of Section 382-B, Cr.P.C. is also extended to convict-appellant. The Reference made by Additional District Court of Criminal Jurisdiction, Rawalakot, for confirmation of death sentence is answered in negative. The Appeal and Reference are decided in the manner indicated herein above. A copy of the instant judgment shall be annexed with other relevant file.