' ABDUL MAJEED MALLICK, C. J.-Abdul Razaq was convicted on the charge of murder of Khan Muhammad Khan and was awarded sentence of `Diyyat' in the sum of Rs, 1,00,000 (one lac), to be paid to the heirs of the deceased and Taj Muhammad, appellant was awarded sentence of `Diyyat' in the sum of Rs, 10,000 for infliction of grievous injury to Muhammad Shafait, petitioner. The conviction was recorded by the District Criminal Court, Poonch on 26th of August, 1980. As appeal against the conviction and revision petition against acquittal and for enhancement of sentence, arise out of one order, these are disposed of together.
2. The incident of murder of Khan Muhammad Khan, deceased, resulted out of strained relations between the parties. Mst. Gulreza Begum alias Goreza Begum is wife of Taj Muhammad convict and daughter of deceased and sister of Muhammad Shafait, injured person. Noor Ahmed is father, Abdul Razaq brother, and Mn. Kesham Jan sister of Taj Muhammad, convict. Mehboob Khan is the husband of Mst. Resham Jan. Mst. Gulreza Begum and Ta; Muhammad married 13 months prior to the incident. Their relations with deceased and Muhammad Shafait Khan remained cordial for first 6 months but the same were strained thereafter and Mst. Gulreza Begum was not allowed to meet her parents and brothers. Muhammad Shafait, serving in Army, was on leave for two months. As Mst. Gulreza Begum was not allowed to visit him during leave period, on close of leave when he left for Landi Kotal, his destination, he desired to see his sister on his way back to duty. Muhammad Shafait alongwith the deceased, while passing in front of the house where Mst. Gulreza Begum resided, called out her to meet him. Taj Muhammad who was present in the house, came out with a hatchet on the call of Muhammad Shafait and asked him to leave, for Mn. Gulreza Begum would not see him. A row started between them which attracted Mehboob Khan and Mst. Resham Jan, other inmates of the house and Noor Ahmed and Abdul Razaq, living in a different house. It was alleged that Noor Ahmed, immediately on his arrival, caught hold of Khan Muhammad Khan when Abdul Razaq, convict caused a blow on the skull of the deceased. The deceased, on receiving blow, fell down on which Noor Ahmed and Mst. Resham Jan pounced upon him. Taj Muhammad inflicted a hatchet blow on the head of Muhammad Shafait when Mehboob Khan simultaneously fired with pistol, causing injury on left elbow of Muhammad Shafait. Mehboob Khan was about to fire a second time when Muhammad Shafait, in retaliation, counter fired with 12-bore gun. Mehboob Khan escaped the aim but Taj Muhammad who by that time, shifted within the range, received pellet injuries. Khan Muhammad Khan deceased was shown to have received 8 injuries out of which injury No, 2, inflicted on head, was given fatal ; others being abrasions, were declared simple.
Muhammad Shafait was shown to have received 7 injuries, out of which injury No, 1 was declared grievous. Taj Muhammad received pellet injuries over lower part of left axilla, left shoulder-joint, and left upper arm and left shoulder, over an area of 11 x 7.
3. The incident took place in the morning of 10th of October, 1977, at the place called Dawakan Baran, village Sahlian, Police Station Dhirkot. The incident was witnessed by Muhammad Shafait and Mst. Gulreza Begum. The witnesses who arrived immediately after the incident, were Mst. Baggi Begum, widow of the deceased, followed by Habib Khan, Muhammad Aziz Khan, Sultan Muhammad Khan, Lambardar, , Muhammad Azad and Sanaullah.
4. The trial Court convicted Abdul Razaq, appellant on the charge of murder of Khan Muhammad Khan and awarded him the sentence of 'Diyyar in the sum of Rs, 1,00,000 to be paid to the legal heirs of the deceased. Taj muhammad was found guilty of causing grievous hurt to Muhammad Shafait and was sentenced to .Diyyat' in the sum of Rs, 10,000 to be paid to Muhammad Shafait. The other accused persons were not found connected with the liability. The evidence led against them was not found free from doubt, as such they were acquitted by availing the benefit of doubt.
5. Kh. Muhammad Saeed, the learned counsel for the appellants, sought indulgence of this Court on the following grounds :- (i)That the prosecution version was false and concocted, as Muhammad Shafait and Khan Muhammad Khan were trespasser and aggressors. They caused injuries on the person of Taj Muhammad in consequence of their aggression ;
(ii) that the ocular testimony of interested eye-witnesses was not corroborated by independent evidence ;
(iii) that the evidence of prosecution was self-contradictory and inconsistent with the prosecution story ; and (iv)- that the evidence of recoveries being defective, was unreliable.
' Mr. Rafique Mahmood Khan, the learned Additional Advocate-General, opposed the objections raised by the learned counsel for the appellants and emphasized that the appellants were connected with the liability of murder, as such deserve maximum sentence provided under law.
6. It is manifest from the record that unhappy incident was the result of strained relations between Taj Muhammad and his in-laws. Taj Muhammad and Mst. Gulreza Begum were married 13 months prior to the incident. The relations between the parties remained cordial for six months and thereafter, Mst. Gulreza Begum was stopped by Taj Muhammad from visiting her parents and brothers. On the day of incident, Muhammad Shafait was going back on duty and out of brotherly affection, while passing in front of the house of accused-party, called Abut his sister to meet him.
This was objected to, by Taj Muhammad and the conversation developed into altercation and ultimate fight.
7. The proposition raised in the first objection necessitates settlement of the place of incident. The place of incident is controverted between the parties. The prosecution's case is that Muhammad Shafait and Khan Muhammad Khan, his father, left for Kohala, on the way passing through 'Kapaddar' so as to meet Mst. Gulreza Begum on way side. The place of incident was shown as the Crown Land through which footpath was shown leading towards Kohala. The distance between the house where accused resided and the place of incident, was about 24 yards. The counter-view was that the incident took place right in front of the door of the house of Mahboob Khan. Here, it may be explained that during the incident, Mst. Gulreza Begum and Taj Muhammmad had come to reside with Mehboob Khan and Mst. Resham Jan. Thus, according to defence view, the incident took place at morning's prayer time when Taj Muhammad was performing ablution for the prayer.
The prosecution'si story was supported by the site-plan, prepared at the instance of Mst. Gulreza Begum and supported by the testimony of Mst. Baggi Begum, Habib Khan, Muhammad Aziz and Sultan Muhammad. The opposite view finds explanation in the statement of Taj Muhammad, recorded under section 342, Cr. P. C. The statement of Taj Muhammad not being explicit, by itself was not sufficient to help this Court to settle the place of incident. Mst. Resham Jan who accepted her presence in the house, failed to support her brother. Contrarily, the prosecution produced enough material to believe that incident took place in the Crown land, as claimed by the prosecution. Muhammad Shafait disclosed that when he reached in front of the house of opposite- party, he called out his sister, Mn. Gulreza Begum. From the place of incident when Taj Muhammad came out of the house and started a row with him. It was clearly disclosed that Khan Muhammad Khan was standing beside him when he was overpowered by Noor Ahmed Khan and given fatal injury by Abdul Razaq. Mst. Gulreza Begum whose presence was not denied by defence, clearly supported Muhammad Shafait, by pointing out the place of incident. Likewise, Mst. Baggi Begum, Habib Khan, Muhammad Aziz Khan and Sultan Muhammad Khan corroborated Muhammad Shafait by fixing the seat of scene, as given by the prosecution. Muhammad Aziz was a cousin brother of Noor Ahmed. Sultan Muhammad Khan was also not shown interested, inimical or biased to defence. All the witnesses who arrived at the scene immediately after the incident, unanimously testified that they found all the injured persons lying at the place of incident and that it were they who brought cots from the house of Mehboob Khan, placed the injured persons on them and shifted them to the courtyard of Mehboob Khan where Khan Muhammad Khan succumbed to fatal injury.
8. Introduction of rule of cross-examination is considered as the best device to explore the truth.
The object of cross-examination is to probe and highlight the desired facts, considered and veiled and withheld by a witness and to establish one's own version as well as to impeach the credit of the witness. It is an accepted rule that the party cross-examining the witness, should put its own case, so far as it was close to the evidence of such witness, in the form of suggestion, to discredit the version of opposite party. In the instant case, it is noticed that Taj Muhammad, convict, in his statement, suggested the place of incident as right In front of the door of the house, whereas the trend of cross-examination throughout tends to suggest that the place where the deceased received his head injury, was a flat rock (Pali) where he fell down by slip and was injured.
Muhammad Shafait was cross-examined on the location of `Parr. It was stated by the witness that such a 'Part' was not situate in front of the house of Mehboob Khan, rather it was situate at a distance of 35 yards, on upper side. A suggestion was denied by him that his father was removed from below the 'Parr. In another suggestion, it was proposed that Taj . Muhammad was sleeping alongwith his wife and was awoken by a knock at door. The moment he came out of the door, he was fired upon. The witness reiterated his answer in negative to a suggestion that his father ran away from the place of incident and fell down by slipping. An identical suggestion was put to M.
Gulreza Begum. The trend of cross-examination and suggestions put to the witnesses tends to show that Khan Muhammad Khan, deceased received the fatal injury by a fall on the flat rock (Pan)), situate at considerable distance from the house of Mehboob Khan. The probe in cross- examination and the suggestions put to the witnesses, in this regard, are in complete departure to the stand taken by Taj Muhammad. It is manifest from the aforesaid position of the case that the defence itself was shifting the scene of incident to various places. This was done in presence of its ambiguous and uncertain belief about the actual place of incident.
9. The allegation of trespassing and aggression against the complainant party, is equally belied, when examined from another aspect of the case. The other aspect reflects the nature and number of injuries on Taj Muhammad, Muhammad Shafait and deceased. Taj Muhammad, in his statement, explained his own injuries as well as fatal injury of deceased. It was narrated that when Muhammad Shafait fired on him with 12-bore gun, he grappled with Muhammad Shafait, to snatch the gun. The gun was shattered into pieces in the struggle, whereupon Muhammad Shafait took the hatchet from the deceased and struck it on the convict, but due to shifting of position by the convict, the hatchet saddled on the head of the deceased. Thus, Taj Muhammad was able to explain, in addition to his own injuries, the single injury of deceased. The position teken by the convict when examined in the light of the facts established by the Prosecution, is found in negative.
The number of injuries received by Muhammad Shafait and deceased were uncontroverted. It is also noticed that the deceased received various abrasions which were declared simple in nature in medico-legal report. Likewise, Muhammad Shafait was shown to have received more than one injuries. One of such injuries on the head of Muhammad Shafait was given grievous. Obviously, the Prosecution successfully explained the injuries sustained by the parties. Muhammad Shafait Khan deposed that Noor Muhammad Khan caught hold of his father, Abdul Razaq caused a hatchet blow on the head of the deceased who fell down and was pounched upon by Noor Ahmed and Mst.
Resham Jan. On other end, Taj Muhammad gave a hatchet blow on the head of the witness and Mehboob Khan fired with pistol which hit the left elbow of the witness. It was after the receipt of the injuries that he counter fired in self-defence. The number and nature of injuries shown on Muhammad Shafait and his father, are found compatible with the prosecution version. It is also noticed that Taj Muhammad could not have inflicted the injury on Muhammad Shafait after receiving the pellet injuries. The other accused persons had no courage to accept their participation in the incident and felt advised to plead alibi. In presence of alibi of other accused persons, the explanation of Taj Muhammad by itself was not convincing to believe the manner and mode of incident, suggested by him. Besides that, Taj Muhammad is contradicted by repeated suggestions in the cross-examination to the eye-witnesses, whereby defence introduced the story of felling down of deceased by slipping on the flat rock (Pan) and thereby receiving injuries. It is true that the defence was not obliged to stick to one version and was free to suggest alternate defence, but at the same c, time, self-contradictory and inconsistent suggestions to establish the innocence, destroyed the credibility and weight of the manner of incident pleaded by Taj Muhammad.
10. In the case of criminal liability, the onus is always on prosecution to prove its case beyond reasonable doubt. On the charge of murder, prosecution is under duty to prove that the act by which the death was caused, was done with the intention and knowledge. On the other hand, when the incident of murder was not denied but the manner and nature of incident resulting in murder was disputed and the existence of circumstances bringing the case within any of the general exceptions under the Code, was pleaded, the onus of proving different manner of the incident and the existence of circumstances bringing the case within any one of the general exceptions, was upon the defence. In present case, Abdul Razaq denied his presence and participation in the incident and pleaded alibi. But Taj Muhammad, being an injured person, admitted the occurring of incident resulting in death of Khan Muhammad Khan and pleaded the existence of the circumstances and manner of incident, altogether different from the state of occurrence alleged by the prosecution. The learned counsel for the convicts objected to the finding of the trial Court by pointing out the act of Muhammad Shafait and deceased as a trespass and aggression and justified the death of deceased in self-defence. Of course, such a plea was not taken unequivocally but an implied suggestion was hinted at repeatedly. We have already discussed the particulars of incident in detail and rejected the defence version in respect Of the place of incident as well as its manner.. We feel satisfied with the prosecution story and hold that prosecution successfully proved its allegation. Our view finds material support from the testimony of Mst. Gulreza Begum. It is true that she was daughter of the deceased and sister of Muhammad Shafait Khan but she was equally related to Taj Muhammad to whom she was more loyal and affectionate, as she chose to live with him by refusing to visit her parents. The lengthy cross-examination of the witness rendered it entirely a futile effort, as the defence was unable to bring out the desired facts by modifying the prosecution story, disclosed in examination-in-chief. The witness explicitly corroborated Muhammad Shafait in material particulars of the incident. Her testimony was not shown or even hinted at as biased, inimical or interested, in any manner. The defence rather categorically accepted her presence and witnessing of the incident A witness accepted as related to both the parties, choosing to live with the convict in preference to parents, cannot be accepted as an interested witness. The suggestion that the evidence of Mst. Gulreza Begum was biased, finds no support from the record. Mst. Resham Jan who also accepted to be present in the house, on the other hand, suppressed the material facts, of the incident and confined herself to seeing the injured persons lying outside the house. The evidence of Muhammad Shafait and Mst. Gulreza Begum, the eye-witnesses, finds complete corroboration from Mst. Baggi who reached immediately after the incident and other witnesses who followed her. Muhammad Aziz and Sanaullah are shown independent witnesses. Muhammad Aziz disclosed that he was first cousin of Noor Ahmed, as such uncle of the convicts. Nothing was brought on record to impeach the testimony of Muhammad Aziz and Sultan Muhammad.
11. Our attention was invited to small contradictions, occurring in the evidence of the eye-witnesses.
But such contradictions were not material as they related to pre-incident and post-incident position. One of such contradictions, hinted at by the learned counsel for the defence, was that Mst.
Gulreza Begum admitted to have visited two months earlier to her ailing brother. This part of the statement was highlighted to make capital out of it, for discrediting the alleged motive. Be as it may, it is nobody's case that Taj Muhammad was not on visiting terms with his in-laws. According to his own statement, his in-laws keenly wanted separation of his wife. Thus, the minor discrepancies, if any, are not found fatal to the prosecution's case. We have failed to appreciate the objection relating to inconsistency in the testimony of prosecution evidence. We have already examined the relevant evidence and we have not been able to find out any part of the testimony of the prosecution witnesses, which may be termed as inconsistent to prosecution story. The objection is, therefore, not found sustainable.
12. The last objection was made in respect of recoveries. The recoveries are of two kinds. One part of the recoveries pertains to weapons of offence recovered at the instance of the accused persons and the other part confines to venous articles, including the .12-bore gun, in possession of Muhammad Shafait, at the time of incident. Presence of the ocular testimony corroborated by the evidence of witnesses reaching immediately after the incident, is sufficient to sustain the conviction of the accused persons. Thus, the recoveries shown to have been made at the instance of the accused persons, even if disbelieved for argument sake for which there is no reason to disbelieve, is not considered adverse to the prosecution. It is noticed that Muhammad Shafait Khan accepted to have a .12-bore gun in his possession, at the time of incident. The gun was unlicensed.
It was easy for the witness to disown it but credit goes to him that despite having no licence, he openly accepted the possession of the gun and its use in the incident. The explanation for keeping the gun at the particular moment, is also not shown to be improbable and incredible. On the other hand. The alleged version of camouflage ascribed to Muhammad Shafait was nothing but a fabrication. This is so, as Muhammad Aziz Khan and Sultan Muhammad Khan who are independent witnesses, positively contradicted Taj Muhammad on that score. In our estimation, the recoveries were not shown defective in any respect.
13. A hint was also dropped on the evidence of Doctor to convince us that the medical evidence contradicted the direct evidence so much so that prosecution version assumed incredibility. The Doctor categorically supported the prosecution in material particulars, in respect of injuries of the deceased. However, he disclosed that the pistol injury of Muhammad Shafait was not ascertainable in absence of X-ray report. The Doctor also accepted that the injury was not X-rayed despite his direction. The fact of such an omission on the part of Muhammad Shafait has already been given in the shape of benefit of doubt to Mehboob Khan, who was ascribed the pistol injury.
We ourselves examined the seat of pistol injury and found the scar-mark still present. The attribution was not found conclusive in absence of proof of exit wound or presence of bullet in the arm of the witness. We feel satisfied with the finding of the trial Court on this point and hold that Mehboob Khan was rightly given the benefit of doubt.
14. Muhammad Shafait also lodged a revision petition for enhancement of sentence of the two appellants and setting aside the order of acquittal in respect of other respondents. We have examined the injuries of the deceased and Muhammad Shafait. The deceased received one fatal injury and others were in the shape of abrasions, not likely to be caused with any weapon, such as hatchet or sticks. Such injuries are likely from fists and kicks. As none of such injuries was attributed by fists and kicks, acquitted persons were entitled to the benefit of doubt. Likewise, the simple injuries on the person of Muhammad Shafait were not shown to have been caused with any weapon except the kicks. As Muhammad Shafait also failed to attribute such injuries to any other accused, the acquitted accused were not found connected with the liability of such injuries. The order of the trial Court in that respect was not likely to be disturbed.
15. Under the Islamic Penal Laws Act, the ordinary sentence for murder is `Qassas', but that was subject to quality and standard of evidence prescribed under law. In the present case, the quality audit/ standard of evidence necessitating sentence of `Qassas', was admittedly not available.
When the sentence of `Qassas' was not found enforceable,/ the Court was empowered to award one of the alternate sentences. The legislature has not framed any hard and fast rule for enforcing either of alternate sentences ; rather the discretion was left with the Court to award either of such sentences. As the trial Court, in its wisdom, decided to 1 award the sentence of `Diyyat' to both the convicts, we are not strengthened with any reason to record our disagreement and change the sentence of 'Diyyar into sentence of `Tazeer' or death. The impugned finding is, therefore, maintained. The appeal as well as revision petition are hereby dismissed.