1. ' SARDAR MUHAMMAD ASHRAF KHAN, J.----This appeal is directed against the judgment and order of the District Criminal Court, Poonch, dated 21st May, 1980, whereby MuhammadRashid Khan, appellant, has been convicted for the murder of his stepbrother, Muhammad Hanif Khan under section 5, Islamic Penal Enforcement Laws Act, 1974 and awarded the sentence of Tassas'. The trial Court has also made a reference for the confirmation of the above conviction and sentence. This order will dispose of both the above matters.
2. ' The facts leading to the filing of the present appeal are that Muhammad Rashid Khan, appellant alongwith his brother Abdul Qayyum Khan, was put on trial in the District Criminal Court, Poonch, for offence under section 302, A. P. C. Read with section 5, Islamic Penal Laws Act, 1974, on the charge of murder of their step-brother, Muhammad Hanif Khan. After the trial, the said Court convicted the appellant under section 392, A. P. C. And sentenced him to death while Abdul Qayyum Khan, a co- accused, was acquitted vide its judgment and order dated 18th October, 1976. The appellant filed an appeal against the above order of his conviction and sentence, before the High Court which maintained the conviction of the appellant but altered the sentence of death to that of life imprisonment, vide its order dated 13th November, 1977. On further appeal, the Supreme Court set aside the conviction and sentence of the appellant passed by the trial Court as well as High Court and remanded the case to the trial Court with the direction to conduct the purgation of the witnesses and thereafter proceed to decide the case afresh in accordance with law. The trial Court, after complying with the directions of the Supreme Court, again, finding the appellant guilty of the commission of offence of murder, convicted him under section 5 of the Islamic Penal Enforcement Laws Act and awarded him sentence of Qassas. It is against this order of the trial Court that the present appeal has been preferred by the appellant.
3. ' Briefly stated, the prosecution story is that Muhammad Hanif Khan, deceased, was a step-brother of Muhammad Rashid Khan, appellant and Abdul Qayyum, an acquitted accused, but was the real brother of Balauch Khan, P. W., as they were the sons of the same father from two different wives.
4. These two sets of step-brothers had a long-standing history of enmity with each other on account of dispute over the possession of Khalsa State land, so much so that sometime prior to the occurrence they had been arrested for apprehension of breach of peace and remained in detention for a period of 7 days before they were released on their executing bonds for keeping peace and good behaviour. It is alleged that on 16th September, 1975 at about 3 p. m. Balauch Khan, P. W., was shepherding his cattle grazing in the Khalsa land in village Nakkar Jhanda Bagla, Tehsil Pallandri when Muhammad Rashid, appellant and Abdul Qayyum, an acquitted accused, came there armed with 12-bore gun and stick respectively and attacked him whereupon he started running raising hue and cry which attracted Muhammad Anwar Khan, complainant near the spot who asked them not to kill Balauch Khan. The appellant, on this, aimed his gun at him whereupon he ran away raising alarm which attracted Muhammad Hanif Khan, deceased to the scene. The deceased also asked the appellant and his brother to desist from killing his brother, Balauch Khan, but instead of listening his solicitations, the appellant aimed his gun at him and fired a shot which hit him on his left arm piercing through left side of the body. Abdul Qayyum, an acquitted accused, pressed the neck of the deceased while he had fallen on the ground on the receipt of gun-shot wound. The culprits, finding Muhammad Hanif dead, slipped away from the place of occurrence. Muhammad Anwar Khan, complainant, went to the Police Station, Pallandri to lodge the F. I. R. Which ultimately resulted in the submission of the challan against the appellant and his brother, as stated above.
5. ' The appellant, in his statement, did not deny the fact of Muhammad Hand Khan having died as a result of the gun-shot injury caused by him from a.12-bore gun but took up the defence that he had fired at the deceased in exercise of right of self-defence as well as property. The version of the incident as put forth by him, was that at the time of occurrence, Balauch Khan, P. W., Muhammad Anwar Khan, complainant and one Muhammad Hanif Khan, complainant's brother, had thrown their cattle in the field in their possession known as 'rain wall kalas' causing damage to the maiz crop standing thereon. Meanwhile, Mst. Zeerat Begum, wife of Abdul Qayyum Khan, an acquitted accused, happened to go to the said field alongwith his nephew for the purpose of grazing the cattle and on seeing the maize crop being damaged by the cattle of the complainant party, asked them to take away their cattle from the field and not to damage the crop. On this, the deceased and his companions attacked the said woman and started beating her on which she raised alarm which attracted her husband on the spot who asked them as to why they were getting their crop damaged by letting loose their cattle in the maize field and beating his wife. The complainant party also started giving beating to Abdul Qayyum. The appellant, meanwhile, was also attracted to the scene of occurrence on the hue and cry raised by Mst. Zeerat Begum who also asked the complainant party not to indulge in damaging their crop and beating his brother and his brother's wife, upon which the complainant party cordoned him. The deceased started moving towards him by firing from the pistol he was holding in his hand and when he reached near him at a distance of about 5 yards, the appellant had to resort to fire at him with the gun in order to save his life which resulted in the death of Muhammad Hanif Khan.
6. ' The prosecution has examined Muhammad Anwar Khan, Balauch Khan, Hay. Muhammad Afsar Khan, Walayat Khan, Muhammad Afsar Khan. Muhammad Ashraf Khan, Dr. Ghazanfar Ali Khan and Sardar Maqbool Khan, out of whom Muhammad Anwar Khan, and Balauch Khan are eye-witnesses of the occurrence. Hav. Muhammad Afsar Khan, and Walayat Khan are witnesses of recoveries while Muhammad Afsar Khan was the first to reach on the spot who was told about the occurrence.
7. Dr. Ghazanfar Ali Khan had conducted the post-mortem examination and Sardar Maqbool Hussain Khan has investigated the case. The defence has only examined Mst. Zeerat Begum.
8. ' We have heard the learned Counsel for the appellant as well as the State and also perused the entire record of the case. It has been argued by the learned Counsel for the appellant that the eye- witnesses in the case are admittedly inimical to the appellant and closely related to the deceased and as such their evidence cannot be made the basis of conviction of the appellant. It has also been argued that the F. I. R. Has been lodged after the Police had gone to the spot after due consultation and deliberation and that the occurrence has not taken place in the manner as alleged by the Prosecution but the appellant, under the compulsion of the circumstances, had fired at the deceased in exercise of right of self-defence. Certain discrepancies in the statements of the eye-witnesses were also pointed out by the learned Counsel for the appellant to show that their testimony is tainted having been given on account of their relationship with the deceased and animosity towards the appellant. On the other hand, it has been contended by the learned Counsel for the State that there is nothing on the record to disbelieve the ocular testimony in the case and that the defence put forth by the appellant, is absolutely unbelievable in the circumstances of the case. In this case, there is no dispute over the fact that the deceased lost his life on receiving a gun-shot wound at the hands of the appellant. The appellant had himself admitted that it was he who had fired at Muhammad Hanif Khan causing his death. The only difference between the Prosecution and the defence is as to the circumstances under which the appellant had fired a gun-shot killing Muhammad Hanif. The Prosecution case is that it was the appellant who deliberately without any cause, had caused gun-shot injury on the person of the deceased which resulted in his death while the version of the defence is that the appellant had to fire at the deceased under the right of self-defence and that he did not intentionally cause his death.
9. After carefully going through the entire record and taking into consideration the circumstances attending the occurrence, we have come to the conclusion that the defence taken by the appellant in the present case is not correct one. In support of his plea of doing to death the deceased in exercise of the right of self-defence the appellant has examined only Mst. Zeerat Begum who is the wife of his acquitted brother, Abdul Qayyum. The statement of such a highly interested and related witness cannot be relied upon to sustain the plea of defence referred to above. Despite the fact that the appellant had failed to adduce any independent and reliable evidence in support of his plea taken in defence, we ourselves have searched for any circumstance that may appear on record to suggest that the defence taken by the appellant might be true but we have not been able to find out any such circumstance ; rather on the contrary, all the circumstances of the case lead to inescapable conclusion regarding the defence version being untrue. If the plea of the appellant that he had to resort to firing at Muhammad Hanif in self- defence, had been correct, then it was but natural that he should have made a report to the Police regarding the attack being made on him by the complainant party at the time of the occurrence but no such report was ever made by the appellant. Although he had stated that he had himself gone to the Police Station to report the matter to the Police but there is nothing on the record to suggest that his efforts to inform the Police about the actual happening resulting in the sad tragedy of death of Muhammad Hanif had failed as the Police did not record his version of the incident. Even if it is assumed for the sake of argument that his report was not recorded still he or his relatives had the opportunity to make a complaint to the competent Court of law about the high-handedness of the complainant party which compelled the appellant to take recourse to fire at the deceased, but no such complaint was ever made. It is also the case of the defence that at the time of the occurrence, the deceased and his party-men had got their maize crop damaged by throwing their cattle in the maize field and when they were -asked to desist from doing so, they had attacked and caused injuries to Abdul Qayyum, an acquitted accused and his wife, Mst. Zeerat Begum, D. W. With the back side of the hatchet and stick but no injury was found on the person of Abdul Qayyum, acquitted accused when he was arrested soon after the occurrence. If, in fact, he had sustained any injury during the incident, then it was quite natural for him to have shown the same to the Police which ought to have prepared the injury-sheet and sent him to the Medical Officer for examination. Similarly, Mst. Zeerat Begum was not found injured. She herself had deposed in her statement that she had not shown the injuries sustained by her or narrated her version in respect of the attack having been made by the complainant party to the persons who had gathered on the spot soon after the occurrence. This conduct is most unnatural and had the defence plea been true the injured persons would not have remained mum about the happening that had taken place before the deceased was fired at by the appellant. This unnatural conduct of the accused as well as defence-witness belies the truthfulness of the defence that it was in exercise of the right of self-defence that the appellant had taken the life of Muhammad Hanif.
10. ' There is yet another circumstance which cannot be lost sight of while examining the defence of the appellant. The defence has also put up the case that at the time of occurrence, the complainant party had thrown their cattle in their maize field which had caused damage to the crop standing therein but there is no evidence on the record that any crop grown by the appellant or his brother was found damaged on the day of occurrence. The dead body, blood-stained earth and crime-empty, all were recovered from the `Khalsa' land in possession of residents of the village and not from the land in possession of the appellant. This fact also goes to prove the untruthfulness of the version of the incident as given by the defence. There is yet another fact which belies the defence version. The appellant had taken the stand in his statement before the trial Court that the eyewitnesses and one Muhammad Hanif had, at the time of occurrence, surrounded him and the deceased while moving towards him, had also fired three shots from, his pistol and that it was only when he (deceased) had come about 5 yards near to him that he had fired at him so as to save his own life. In the peculiar circumstances of the case, the above version cannot be true. The appellant was armed with 12.Bore gun and thus, it is not believeable that the deceased would have dared to come towards the appellant firing from his pistol. The range of the pistol-fire is very short as compared to 12-bors gun. No sane person would have taken the risk of coming as pear as 5 yards to the appellant who was holding 12-bore gun and was admittedly harbouring enmity for him. Moreover, the appellant could easily prevent the deceased from firing at and coming towards him by firing gun-shots in the air when he was out of the range of the pistol-shot. On the top of all that, the post-mortem report also runs counter to the 'defence version of the appellant. If the appellant had fired at the deceased when he was coming towards him firing with the pistol. The shot from the gun would have hit the deceased on the front side of his body but, according to the post-mortem report, the gun-shot injuries found on the person of the deceased were on the middle-outer side of the left arm and left lateral side of the chest and their direction was left lateral. The above position of the injuries would show. That when the deceased received gun-shot injury he was not facing the appellant ; because in that case the direction of the injuries sustained by him would not have been as left lateral. Moreover, the distance from which the deceased, was fired at has been shown in the post-mortem report to be roughtly from one to three feet. This means that the appellant had fired from a very close distance on the deceased and not from the distance of 5 yards as is alleged by the appellant in his defence. This part of the post- mortem report also shows that the version of the defence that the deceased had fired at the appellant from his pistol is not true because had the deceased done so, there was no reason that his pistol-fire would have missed its object standing only at a distance of 1 to 3 feet.
11. ' For the reasons stated above, the defence plea that the appellant had shot Muhammad Hanif dead in exercise of his right of defence of his person is repelled and we entertain no doubt, whatsoever, that the appellant had intentionally done to death above-named person by firing a shot from 12-bore gun. The prosecution case is fully supported by the ocular evidence furnished by two witnesses. It is, of course, true that the ocular testimony cannot be described as independent and disinterested. The Witnesses of the occurrence besides being related inter se, are also closely related to the deceased. Muhammad Balauch is a brother of the deceased while Muhammad Anwar Khan, complainant, is the husband of deceased's sister. They were also inimical towards the appellant and were party-men of the deceased in a litigation which was going on between the appellant and, the deceased, over the possession of `Kalsa' land before the taking place of the occurrence. But in spite of all that, their evidence cannot be brushed aside merely on the ground that they are interested and partisan witnesses. The defence has admitted their presence on the spot at the time. Of the occurrence. It is also not denied by the appellant that the death of Muhammad Hanif was not the result of his gun-shot fire. At the time of occurrence, the presence of any other independent witness was not 'possible nor the presence of any such person is claimed by the appellant. There was no house of any other independent person near the-vicinity. The defence version has also been found untrue. In view of the circumstances enumerated above, we find no reason to disbelieve the evidence of eyewitnesses to the effect that the appellant had fired at and killed Muhammad Hanif after some altercation over the question of grazing the cattle in the 'Khalsa' land. In this view of the matter, we find that the trial Court has rightly convicted the appellant for the murder of Muhammad Hanif Khan but at the same time, we are of the opinion that the conviction under section 5, Islamic Penal Laws Act and imposition of sentence of Qassas was not warranted in the circumstances of the case. The 'sentence of 'Qassas' can only be awarded if two major male witnesses area available who also come up to the standard laid down for such witnesses by the Islamic Law. Under the Islamic Law, the evidence of a brother of murdered person is not admissible in evidence against an accused person. In this case, one of the eye- witnesses being the real brother of the deceased, his evidence does not fulfil the standard laid down by the Islamic Law for evidence to be admissible against an accused person in 'Qassas' cases. In this view of the matter, it would not be lawful in this case to award the sentence of Qassas to the appellant. Since the commission of offence of murder is otherwise brought home to the appellant, he is liable to be convicted under section 24 of the Islamic Penal Laws Act and to the imposition of any of the penalties mentioned in section 3 of the said Act which includes even death.
12. In the circumstances of the case, we do not feel that the sentence of death is called for to be awarded to the appellant. It is undisputed that the appellant and the deceased were step-brothers who had the long-standing history of animosity with each other on the dispute of ancestral property and over the possession of `Khalsa' land. The occurrences appears to have taken place all of a sudden over the respective claim of the parties to have the right to graze the cattle in and make use of Khalsa' land. All the above facts are mitigating circumstances not justifying the award of death penalty to the appellant for the murder of his step-brother. In our view, the sentence of imprisonment would meet the ends of justice. Therefore, we alter the conviction of the appellant from section 5 to section 24 of the Islamic Penal Laws Act and sentence him to rigorous imprisonment for 14 years under section 24 read with section 3 of the Islamic Penal Laws Act. With the above modification, the appeal and the reference are disposed of accordingly.