' ABDUL MANED MALLICK, C. J.-Both the appeals and revision petition arise out of a common order, therefore, we propose to decide them by single judgment.
2. The appeals are directed against the order of District, Criminal Court, Poonch recorded on the 30th September. 1979, whereby Hassan Muhammad was found guilty for offence of murder and was awarded sentence of `Diyyat' in the sum of Rs, 68.000 and Muhammad Anwar, respondent was acquitted for want of proof, whereas the revision petition has been filed for the enhancement of sentence awarded by the trial Court to Hassan Muhammad, appellant.
3. The incident took place at 11 a. m. On 24th of September, 1977 The prosecution's case is that at the time of incident, Said Muhammad deceased alongwith Muhammad Nazir, his son, was cutting grass from the common boundary of land of the parties. Mst. Ali Begum, wife of the deceased, was also standing beside them, Hassan Muhammad and Muhammad Anwar, his son, were seen coming from Topa Bazar and going to their house. Both the accused, soon after, arrived at the place of incident. Hassan Muhammad asked Said Muhammad deceased as to why he cut grass from the land of the accused. The allegation was denied but there was exchange of abuses which resulted in a row and ultimate infliction of injuries to the deceased and Hassan Muhammad accused. Said Muhammad deceased succumbed to the injuries and died after short interval. It was alleged that on exchange of abuses, Hassan Muhammad and Muhammad Anwar, both inflicted blows on the head of deceased whereupon Hassan Muhammad asked Muhammad Anwar, his son, to bring his revolver or knife from the house. Muhammad Anwar went to the house and brought a knife and handed it over to his father, who caused various injuries on the chest, legs and scapula of the deceased. Said Muhammad, on receiving of injuries, fell down on which accused persons left for their house. The incident was shown to have been witnessed by Mst. Ali Begum, Muhammad Nazir, Nazam Khan and Muhammad Bashir Khan.
4. The immediate cause of the incident, as alleged by the prosecution, was cutting of grass from the common boundary of the land of Said Muhammad deceased and Hassan Muhammad. It was disclosed that Survey No, 611-min measuring 30 Kanals and 15 Marlas, was an evacuee land.
Hassan Muhammad acquired allotment of 15 Kanals 8 Marlas, whereas Said Muhammad got allotment of 15 Kanals 7 Marlas. The field. Was divided between the parties but two years prior to the incicent, there was a quarrel between them over the common boundary. This quarrel also took place on account of cutting of grass. It was stated that dispute was settled at that time by Sher Ali Khan, Musahib Khan and Muhammad Ayub Khan. It was alleged that at the time of previous quarrel, Hassan Muhammad attempted to stab deceased with knife but the attempt was averted by the interference of witnesses. It may be helpful to mention that the houses of the parties are also situate in the land in dispute. The house of Hassan Muhammad was shown at a distance of 70 feet and the house of deceased at a distance of 198 feet from the place of incident.
5. Hassan Muhammad and Muhammad Anwar pleaded guilty in statement under section 242, Cr.
P. C. Muhammad Anwar pleaded alibi in his statement under section 342, 'Cr. P. C., whereas Hassan Muhammad denied the allegation but pleaded that at the time of incident, the convict and Mst.
Shamim Akhtar, his daughter, were present in the house when on prohibiting by accused to the deceased and Mst. Ali Begum, his wife, from cutting grass from his part of the land, deceased and Mst. Ali Begum, both attacked the accused and his daughter, in the precincts of their house. On receipt of injuries from deceased, the accused retired in a room and bolted in from inside. He expressed ignorance of knowledge of injuries found on the person of the deceased.
6, Prosecution story was sought to be proved by direct evidence consisting of testimony of Msz. Ali Begum, complainant, Muhammad Nazir, Nazam Khan and Muhammad Bashir. The other set of evidence consists of recovery of blood-stained articles and weapon of offence as well as medical evidence. Hassan Muhammad led no evidence in defence, whereas Muhammad Anwar, respondent produced one Muhammad .Hayat, his class-fellow, in support of the plea of alibi.
7. It may be stated that Said Muhammad deceased received as many as 13 injuries. Out of these injuries Nos. 1, 5, 6 and 7 were shown as incised wounds. Injuries Nos. 4, 10 and 11 were bruises and Nos. 3, 8, 9 and 13 were abrasions. According to medical evidence, the cause of death was haemorrhage and shock due to injuries Nos. 1, 5, 6 and 7. Hassan Muhammad, convict-appellant was also shown to have been injured in the incident. The number of injuries was seven but these were shown simple in nature.
8. The trial Court felt satisfied and persuaded by the prosecution evidence, as a result recorded conviction of Hassan Muhammad, appellant and awarded him punishment of `Diyyat' in the sum of Rs, 68,000 but acquitted Muhammad Anwar, co-accused, for want of sufficient proof to connect him with the liability.
9. Next, we propose to deal with the appeal of Hassan Muhammad, in order to settle the objections raised in that behalf. Kh. Muhammad Saeed, the learned counsel-for the convict-appellant raised the following points-
(i) that F. I. R. Was made after preliminary investigation, as such, it was inadmissible in evidence ; (ii)that Mst. Ali Begum and Muhammad Nazir, eye-witnesses, were related, interested and inimical, whereas Nazam Khan and Muhammad Bashir. Khan were inimical, as such interested in conviction ;
(iii) that evidence of eye-witnesses was full of contradictions and improvements ;
(iv) that prosecution failed to prove the case satisfactorily; and
(v) that defence taken by Hassan Muhammad finds full support from prosecution evidence.
10. The first objection was sought to be supported by reference to the evidence of Mst. Ali Begum, wherein she admitted that F. I. R. Was written by one Muhammad Saeed, while she was on her way to the Police Station. In reply to a question, in cross-examination, the witness stated that Muhammad Saeed, failed to accompany her to the police station, as he disclosed an urgent business at home. It was suggested that in presence of aforesaid evidence, subsequently, presence of Muhammad Saeed on the spot at the time of arrival of Police, was improbable.
Contrarily, presence of Muhammad Saeed on the spot on the arrival of police suggested that the F.
I. R. Was, in fact, got written on the spot after preliminary investigation. In our view, this objection is devoid of force. The statement of Mst. Ali Begum, when construed in its true prospective and chain of narration, leads to the conclusion that presence of Muhammad Saeed on the spot at the time of arrival of police, was not unnatural. Mst. Ali Begum deposed that immediately after the death of Said Muhammad deceased, she left for police station to lodge the report. On her way, she met Muhammad Saeed to whom she disclosed the details of incident. Muhammad Saeed recorded the story in the manner disclosed by the witness and handed over the report to her for giving it to . The .Police. In reply to a question, the witness stated that Muhammad Saeed did not accompany her to police station.As he had some urgent work at home. It is clear from- evidence of prosecution that the house of Muhammad Saeed was at a short distance from the 'place of incident. The incident took place at 11-0 Clock, the report was lodged at 3 p. m., whereas police arrived at about {{URDU TEXT}} Keeping in view the distance of Muhammad Saced's house from the place of incident and the interval between the writing of report and arrival of police, alongwith the nature of incident, we are satisfied that arrival of Muhammad Saeed prior to the arrival of police, was not improbable.
Thus, failure of Muhammad Saeed to accompany Mst. Ali Begum to police station and his subsequent arrival on the scene prior to arrival of the police, was not sufficient to make us believe that the F. I. R. Was not lodged by Mst. Ali Begum, at the police station. Our view finds support from the suggestions of the defence made to Mst. Ali Begum. One of the suggestions made to Mst. Ali Begum was that she went to make report to the police alongwith Jannat Hussain. By this suggestion, defence was at least sure that the report was made at the police station. Our attention was also invited to a suggestion whereby Jannat Hussain was assigned the role of making report to the police. The Investigating Officer who registered the case, was also questioned on this aspect cf the case. The Investigating Officer clearly deposed that the report was lodged at the police station and that police arrived at the spot after lodging report, Exh. P. A. Despite lengthy and gruesome cross-examination, both of the complainant and the Investigating Officer, defence failed to find out material in support of the objection. It was a case of daylight murder. The presence of Mst. Ali Begum was even admitted by Hassan Muhammad. The fact that the presence of Mst. Ali Begum was admitted, there was hardly a reason to believe that Mst. Ali Begum would have failed to inform the Police of the details of incident, in the manner the prosecution built up its story. The objection is, therefore, overruled.
11. Mst. Ali Begum and Muhammad Nazir who witnessed the incident, were related inter alia and their relationship was undenied. The rule of evidence is that the testimony of a related witness cannot be discarded merely on account of relationship. In order to seek elimination of such evidence, it was imperative to prove that evidence of the related witness was biased and untrust worthy. Applying the principle to the instant case, despite the fact that Mst. Ali Begum and Muhammad Nazir were related witnesses, the count of prosecution version given by both the witnesses, was found convincing by the trial Court. Our atttention was invited to some of the discrepancies to convince us that the testimony of the witnesses, as a whole, was liable to rejection. We may state here that Mst. Ali Begum and Muhammad Nazir were in agreement on material particulars of the incident. It was deposed by the witnesses that Said Muhammad and Muhammad Nazir wereioccupied in cutting grass and M. Ali Begum was standing by their side when both the accused arrived on the scene. Hassan Muhammad reprimanded Said Muhammad for cutting grass from the common boundary and abused him. When Said Muhammad equally abused Hassan Muhammad, Hassan Muhammad was shown to have inflicted a blow on the head of Said Muhammad with a sota, thereafter, Hassan Muhammad inflicted various incised wounds with his knife. On. This part of the story, no contradiction or inconsistency in evidence of the witnesses was pointed out to us. The discrepancies and improvements suggested by the defence related to the state of facts of post incident. May be that on some of the points, Muhammad Nazir differed with the statement of Mst. Ali Begum but in our view, such inconsistencies had no effect on the actual incident. These witnesses were not ascribed enmity with the accused person. The alleged enmity was not direct in the sense that past bad relations between the deceased and Hassan Muhammad were the result of dispute over the common boundary. Apart from the dispute over the common boundary of land, defence failed to point out any other cause to lend support to the objection that the witnesses were exposed to animosity. At this stage, we may point out that in spite of presence of Mst. Ali Begum and Muhammad Nazir at the time of incident, they were shown to have kept themselves out of the quarrel. Mst. Ali Begum whose presence was even admitted by the defence, did not contribute in the quarrel in any manner. Likewise, Muhammad Nazir also kept aloof from the quarrel and even failed to save his father from the aggressive attack of Hassan Muhammad. The conduct of these witnesses is, in a way, astonishing as Said Muhammad was made victim of cruel attack in their presence and they became so much neutral and detached that they even failed to intervene to protect the head of family. Such an attitude suggested that the witnesses showed least concern in the dispute and ultimate incident of murder. This may not be taken that in our estimation, the witnesses were absent from the scene but we are pointing out that the conduct of the witnesses was indicative of the fact that they were not inimical towards the convict. The next two eye-witnesses are Nazam Khan and Muhammad Bashir Khan. They may be called chance witnesses but the fact remains that the cause of their presence, as explained by them, does not reduce the weight of their evidence as eye-witnesses. The defence undertook lengthy exercise of cross-examination of these witnesses and the burden of lengthy cross- examination suggested enmity of Nazzam Khan with Hassan Muhammad in relation to the land allotted to the appellant. It was suggested that prior to allotment of Hassan Muhammad, the said land was in possession of Nazzam Khan, and his brother. After the allotment, the accused convict lodged ejectment proceedings to the displeasure of Nazzam Khan and his brother. It was pointed out that on delivery of possession of land to the allottee, the relations of the witness with the convict. Were strained. Despite that fact that all the suggestions on the point of enmity were denied expressly and defence failed in its effort to web the threat of enmity of witnesses with the convict, there was other material evidence which negated the objection of defence. The prosecution collected copies of record of rights of the allotted land. This record of rights did not show possession df Nazzam Khan or his brother, of the allotted land, as suggested by the defence, rather the land was shown in possession of a third person. This was just to point out that suggestions of enmity of the witnesses were artificial and concocted. The testimony of Muhammad Bashir was sought to be discarded equally on the same ground. It was argued that Muhammad Bashir being relative of Nazzam Khan, was inimical and interested. The relationship of Muhammad Bashir with Nazzam Khan was accepted, but as Nazzam Khan was not shown inimical towards the accused, mere D relationship of Muhammad Bashir with Nazzam Khan by itself was not sufficient to discard the evidence of these independent witnesses.
12. The presence of Nazzam Khan and Muhammad Basbir as shown by prosecution, was in the manner that Muhammad Bashir went to invite Nazzam Khan for participation in that which he arranged in the coming evening. The ladies blonging to the family of Nazzam Khan told him that Nazzam Khan had gone with his cattle to water spring. The witness followed the course and he met Nazzam Khan on way. They were talking in context of the function when they heard hue and cry and were attracted to the incident. On their arrival on the scene, they found Hassan Muhammad inflicting injuries with knife to Said Muhammad. On infection of injuries, Said Muhammad fell down and tried to crawl towards his house when he was assisted by the witnesses to arrive in his house.
The presence of these witnesses at the place where they met each other and were talking, was not shown as improbable or unnatural. Unless the manner of their presence at the place where they heard cries and witnessed the incident, was shown improbable or in any manner, doubtful, there was no reason to reject the evidence of these witnesses. So, the objections relating to relationship, enmity and presence of witnesses, stand resolved in the light of aforesaid discussion. Our attention was invited to the sit plan and distance between the house of convict and the place of incident in order to believe that the incident took place in the fashion narrated by Hassan Muhammad.
Hassan Muhammad, in his statement, disclosed that Said Muhammad and Mst. Ali Begum were found cutting grass from his land when he reprimanded them. Both the deceased and his wife were annoyed and they attacked him by causing injuries to him and Mst. Shamim Akhtar. His daughter who alone were in the house. The accused confined himself inside an room and did not react so as to cause counter injuries to the assailant. The prosecution version finds further corroboration by the admission that Hassan Muhammad was also injured. The injuries of Hassan Muhammad were ascribed to the deceased. This par of defence story was supported by Mst. Ali Begum. The other parts of the story, pertaining to place of incident and its manner, were not supported; rather the evidence of recovery of blood-stained stones, bloodstained earth and .Cutting of the grass, positively lead to the conclusion that the place of incident was the one described by the prosecution and not the house of the accused. The number and nature of incised wounds and contusions found on the body of the deceased also negate the defence version and clearly establish the prosecution story to make one believe that these injuries were caused by the accused convict, in the manner alleged by prosecution.
' The onus of proving the guilt of accused always rests on prosecution. It is only after the prosecution have established case against accused. When he pleads that in view of the circumstances suggested by him and repudiated by prosecution, he had not been found guilty of any offence, that he may be called upon to prove that such circumstances (forming his innocence) did exist. When the prosecution failed to make out a case against the accused, he was under no obligation to prove his innocence. In the absence of positive proof of guilt of the accused, he was not called upon to prove his innocence. In the present case when prosecution made out a case against the accused convict and the convict also came out with the version of his innocence, in presence of prima facie case against him, the onus of proof shifted on him to show the existence of circumstances alleged by him and denied by the prosecution. We may record here that in presence of two versions in criminal proceedings, no person can be convicted merely on the ground that case of prosecution was more probable than that on the defence. In such position, the prosecution was under a heavy duty to prove its case beyond reasonable doubt, whereas to show innocence, defence was clothed with alighter task of showing reasonable doubt in the prosecution version or probability of defence version. This view finds support from PLD 1954 FC 300 wherein it was observed as under:-- judicial proceedings no person can be convicted merely on the ground that the case for the prosecution is more probable than that of the defence or because the defence theory is less likely than the prosecution case.
' But where the version of an accused person is held to have been refuted by circumstantial evidence, the inference can only be that the circumstances relied upon are inconsistent with the version of the accused and that, therefore, such version is false and not merely that it is less likely than that of the prosecution."
In the present case, we have already concluded that so far as the case of Hassan Muhammad is concerned, prosecution established its charge against him beyond reasonable doubt. On this point, we were not in disagreement with the trial Court which was in more beneficial position in order to appreciate the evidence on record. As Hassan Muhammad alleged different state of circumstances which were denied by the prosecution, it was incumbent upon him to show that the circumstances, alleged by him, did exist. On his failure to prove existence of such circumstances, in our view, the defence is not entitled to any benefit.
13. As the appellant took refuge of self-defence and pleaded that his case fell within the exception, in order to avail the benefit of one of the exceptions, provided under section 300, A. P. C. Or other relevant provision, the onus to prove existence of circumstances bringing the case of defence within the ambit of general exception or any special exception provided in the Code, was upon him.
This rule was laid down under section 105 of the Evidence Act. The learned counsel for the appellant invited our attention to the statement of the accused and tried to persuade us to accept the defence story in absence of any of the circumstances arising out of the prosecution evidence. May be that defence failed to extract anything from prosecution witnesses, in support of its plea, yet defence was clothed with its right to lead evidence to strengthen its story. The record shows that such a right was not availed. The appellant declined to avail opportunity of leading evidence in defence, so much s that Mst. Shamim Akhtar, daughter of convict, who was shown to have been injured in the incident, was withheld. We do not insist that Mst. Shamim Akbtar should have been produced but failure of defence t produce her in support of its claim, raises a presumption against defence version.
14. Next, we take up the case of Muhammad Anwar, Muhammad Anwar, respondent was not found connected with the liability and was acquitted by the trial Court. The finding of the trial Court on this part of the case, was very brief but it reflects that trial Court was not satisfied to accept the attributions against Muhammad Anwar. As stated earlier, Muhammad Anwar, was ascribed the role of causing a blow to the deceased and of bringing the knife and handing it over to his father, Hassan Muhammad. We have already discussed the position of the houses of the parties, qua the place of incident. It is noticeable that incident took place at mid-day in September. Keeping in view the social conditions of the area, the presence of housemates at the alleged time of incident cannot be eliminated. May be that Muhammad Anwar was present among other members of his family and his presence incited an impulse in the complainant to involve him as well. The other witnesses who were attracted by hue and cry of Mst. Ali Begum and Muhammad Nazir, as disclosed in evidence, by presence of Muhammad Anwar, must have believed his bringing of knife and handing it over to the principal accused. We cannot ignore the fact that Muhammad Anwar was the only grown-up son of Hassan Muhammad, appellant and agony of demise of Said Muhammad might have caused involvement of the respondent. We hold this opinion for the reason that in case Muhammad Anwar was determined to be a partisan in the incident, it was unbelievable that he should have confined to infliction of only one blow. It is already disclosed that houses of the parties were situate in Survey No, 611, where the incident took place. This factor helps to determine that members of the families of deceased and Hassan Muhammad, appellant were naturally present in their houses at the time of incident. May be that Muhammad Anwar who was shown as the only grown-up son of the convict, was standing near the place of incident and he might have helped to refrain Muhammad Nazir and Mst Ali Begum from interference in the quarrel, as Muhammad Nazir and Mst. Ali Begum were also not shown to have taken part in the quarrel as well as interference to protect Said Muhammad deceased. Thus, mere presence of Muhammad Anwar and his action to prohibit the eye-witnesses from interference might have given rise to occasion to rope him in alongwith his father, by attribution of infliction of blow and handing over of the knife to the convict.
Thus, the position, when construed as a whole, leads us to the conclusion that the involvement of Muhammad Anwar was not free from doubt. It may be stated here that we do not discredit the evidence of eye-witnesses by disbelieving it about the involvement of Muhammad Anwar, but we are trying to show that the participation of Muhammad Anwar, as alleged by the prosecution, in our estimation, was not free from doubt. In our conclusion, we do not find ourselves in disagreement with the finding of the trial Court.
15. The learned counsel for the appellant also challenged the recoveries and contended that evidence of recoveries was likely to be discarded, as recoveries were not made at the instance of Hassan Muhammad alone. A perusal of the record shows that this contention was unfounded, as Sher Ali Khan, the recovery witness, expressly deposed that recovery of knife, the weapon of offence, was made at the instance of Hassan Muhammad accused. At the time of recovery, Hassan Muhammad and Muhammad Anwar were not shown to have been taken to the place of recovery and that, such recovery was made at their joint instance. In absence of any ambiguity and doubt in the mode of recovery, we are not persuaded to allow the contention. An unreported case of this Court cited in support of this point, has no application to the proposition in hand.
16. The trial Court awarded the sentence of `Dlyyat' to Hassa Muhammad. The sentence awarded to the convict is adequate punishment and in our view, it is quite appropriate to meet the ends of justice. We have already disclosed that the place of incident was the common boundary, already in dispute between the parties. The site plan is indicative of the fact that Points Nos. 1 and 10, shown in it, are the places rom where deceased and Muhammad Nazir had cut grass. These places re situate on the common boundary of the land of the parties. As the common boundary was already disputed at the time of cutting of grass, it lends support to believe that Hassan Muhammad was within his right to ascertain the position by arriving on spot. The manner in which the whole incident took place, is compatible with the sentence awarded by the trial Court. We are satisfied that the sentence of `Diyyat' meets the ends of justice. The revision petition filed by the State for enhancement of sentence is not considered forceful so as to enhance the sentence from 'Diyyat' to `Qassas.' It was within the competency of the trial Court to award one of the sentences provided under section 3 of the Islamic Penal Laws Act when it felt satisfied that prosecution evidence qualitatively or otherwise justified alternate punishment. The circumstances o the present case, as discussed above, were such that extreme punishment of `Qassas' or death was unwarranted. The revision petition, therefore, being devoid of force stands dismissed.
17. The result of our deliberations, therefore, is that the appeal against the conviction and acquittal alongwith revision petition for enhancement of sentence stand dismissed. The impugned order is maintained.