' ABDUL -MAIM MALLICK, C. J.-The appeal and petitioning for enhancement of sentence arise out of an order of the' District Criminal Court, Kotli, recorded on 3rd May, 1983 whereby Abdul Qayum, appellant was convicted on the charge of murder of Kban Muhammad Khan, deceased and was awarded sentence of life imprisonment, under section 5 read with sections 24(1) and 3 of the Islamic Penal Laws Act, 1974. As both the matters arise out of a common order, it is proposed to dispose them of together.
' The relevant facts of the case are that Khan Muhammad Khan deceased was killed by the appellant at 1 a.m. On 1st July, 1976, at a place called as "Las Jana", in village Plung. Tebsil Sehnsa, District Kotli. The immediate cause for the murder, as disclosed by the prosecution, was inter- divorce by complainant to Mst. Sbamim Begum, his wife and by accused to Mst. Akhtar Begum.
Abdul Qayum, convict-appellant was married to Mst. Akhtar Begum, daughter of the deceased and sister of the complainant, whereas the complainant was married to Mst. Shamim Begum, niece of the convict and daughter of Muhammad Ayub. The marriage took place 5 years prior to the incident. About 4 to 6 months prior to incident, My. Akhtar Begum and Mst. Shamim Begum were divorced due to unhappy relations between the parties, Abdul Qayum, appellant was serving in Army and was on leave during the days of incident. It was alleged that the convict, on arrival on leave, started saying that he had not divorced his wife and would bring her back to his home and in that case, if the parents or brothers of his wife stood in his way, he would do away with them. On the day of incident, Khan Muhammad Kban was grazing his goats, whereas Mst. Rahmat Jan, his daughter and Mst. Aqeeda, his daughter-in-law, accompanied him for collection of fuel wood.. Mst.
Bakht Noor widow of the deceased, Mst. Zubeida Begum, daughter-in-law and Mst. Akhtar Begum, daughter, of the deceased, had gone to village Pana, 3 days earlier for condolence of one of their relatives and were on way back to home, when at a place called as `Koh Gal?, they met the convict who was sitting in wait and was armed with 12 bore gun. The appellant asked his wife to accompany him to his house under the threat of killing. Under the direction of the convict, the ladies followed him till they reached the place visible to Khan Muhammad Khan; deceased from the top of a hilk Khan Muhammad Khan asked the accused not to take away Mst. Akhtar Begum forcibly. On this, the appellant threatened the ladies to keep silence and went straight towards the deceased. On reaching near the deceased, he hold him that he would take his wife with him as he had not divorced her. Qn the objection of the deceased, the convict aimed his gun at the deceased. The deceased raised hue and cry for protection when he was fired upon twice by the convict. Khan Muhammad Khan fell down and expired instantaneously. The incident was seen by Mst. Rebmat Jan, Mat. Aqeeda Begum who were collecting fuelwood at a short distance, as well as by Mat. Bakht Noor, Mat. Zubaida Begum, and Mat. Akhtar Begum. Arif son of Fazal Hussain was attracted by the cries of the deceased and firing, as such he reached the place of incident alongwith Mat. Bakht Noor and others. The convict disappeared after the incident but was apprehended on 8th of January, 1978. The trial Court found the appellant guilty of wilful murder of Khan Muhammad Khan but on account of absence of requisite evidence, awarded sentence of life imprisonment instead of 'Qisas'. The order of conviction has been challenged by the convict as well as by the ,State. The convict seeks his acquittal, whereas the State has moved for conversion of sentence of life imprisonment into sentence of death.
3. Syed Ghulain Hussain Shah. The learned counsel for the appellant, contended that the conviction was bad as it rested on interested, biased and inconsistent evidenced. It was pointed out that in view of the place of incident, the chances of death of the deceased by aimless firing of some unknown hunter, cannot be avoided. The learned Additional Advocate-General opposed the contention of the learned counsel for the appellant and suggested that on bringing home the guilt of murder to the accused, the trial Court fell in error by awarding the sentence, lesser than death.
4. The prosecution's case primarily' rests on the testimony of ocular evidence corroborated by evidence of recovery of crime-empty, the gun and medical report. The eye-witnesses are Mst.
Rehmat Jan, Mo. Zubaida Begum, Mst. Bakht Noor, Mst. Aqeeda Begum and Mst. Akhtar Begum.
Muhammad Arif was shown to have reached immediately after the incident, on hearing the cries of deceased and sound of firing. Muhammad Khalid made the First Information Report. Muhammad Arshad witnessed the recovery of articles, including crime-empty, recovered from the place of incident, whereas Amir Akbar and Muhammad Fazil were the witnesses of recovery of 12 bore gun, the weapon of offence.
It is a well-settled rule of evidence that a related witness cannot be discredited merely on account of relationship with deceased. In order to dis credit the testimony of a related witness, it was equally important to establish interest or enmity constituting the prejudice. A study of evident of the eye-witnesses who are admittedly related to the deceased, does not indicate that the witnesses were hostile and exposed to enmity toward the convict, as such were under an obsession of, such animosity to depot against the convict. The main objection raised against the witnesses relating to enmity, was a reference to the fact of inter-divorce which took place between the parties 4 to 5 months prior to incident. The fact of divorce was undented, rather it was alleged as none of an immediate cause for the incident. Thus, the fact of divorce is pleaded by both the parties and each party intended to use it as a shield.
' The device of cross-examination was introduced to accomplish dual objective, i,e, (i) to demolish the claim of opposite party, and to establish one's own defence. The case of opposite-party is demolished by purging the integrity and credence of witness to test the truth by raising contradictions and inconsistency. Likewise, defence is established by instilling one's own case ingeniously and by making material suggestions. Deviation from the rules, apart from disclosing inaptitude of the cross-examination, raises an inference against the party undertaking cross- examination. In the instant case, defence failed to demolish the attribution of the prosecution. The defence equally failed to propose to the witnesses that they testified against the convict to vindicate the revenge of divorce. The tendency of cross-examination, in no manner suggests that the witnesses were exposed to hostility towards the convict, due to revenge of divorce and they volunteered to testify in that spirit of enmity. On material particulars, defence -failed to establish fabrication, concoction and inconsistency. In the testimony of the eye-witnesses. The fact that Mst.
Bakht Noor,Mst. Zubaida Begum and Mst. Akbtar -Begum had gone to village Pena for condolence and were on their way back when they met the convict at 'Koh Gall and were, coerced to accompany him to his house and they were seen by the deceased in that position who intervened and asked him not to take away Mst. Akhtar Begum forcibly, was undisputed. This is so as no substantial cross-examination is seem to have been madder that direction. ' The piece and time of incident is also not seriously challenged. It is equally evident from, the medical report and the line of crow-examination that Khan Muhammad Khan died of injuries of gun-fire. The crime-empty recovered from the place of incident and ultimately found to have been fired from the gun recovered at the instance of the accused, was also not challenged. All the aforesaid factors being material particulars of the prosecution case and having gone seriously unchallenged, lead to an inference that the defence was not in a position to contradict the eye-witnesses by ascribing them on false and unnatural witnesses. Thus, the objection raised by the learned counsel for appellant that the eye-witnesses being relatives of deceased, as such are incredible, is not sustained.
5. It was emphasised that the place of incident being a 'Jungle' and a hunting area, the possibility of hitting the deceased by an aimless fire of some hunter could not be excluded. The objection is not well-founded as the suggestion was not made with confidence in the cross-examination to the witnesses. The implied suggestion was vehemently denied. May be that the place of incident being a part of 'Jungle', was available for hunting but it cannot be impugned that the place of incident is situate in the vicinity of the village. It was shown in front of the house of Muhammad Arif and others.
It was equally visible from the house of the deceased. Immediate arrival of Muhammad Arif and other witnesses further suggests that the defence was devoid of force. The contention of the learned counsel for the appellant is repelled from another aspect of the case and that is that according to prosecution, the accused-convict was on leave from his Unit during the days of incident. It was attributed that he disappeared immediately after the incident and was arrested after a pretty long time. The convict was acceptedly serving in Army during the days of occurrence.
On production of evidence by prosecution to establish the guilt of accused, the onus shifted on the convict to prove his innocence. In the circumstances, it became all the more necessary for the convict to discharge or shift the onus by proving that at the relevant time he was present in his Unit. Apart from the fact of absconsion of the convict, which by itself was a corroborative piece of evidence, the convict failed to establish, by any evidence, that at the relevant time be was present in his Unit. The case when examined from this angle, leads to an inference favourable to prosecution.
6. The material recoveries of the case are crime-empty recovered from the place of incident and the gun recovered at the instance of the convict. The convict-appellant denied the recovery of gun at his instance. But prosecution, in support of its claim, produced recovery witnesses. Both the recovery witnesses conclusively proved the recovery of the gun at the instance of the appellant.
The appellant was unable to attribute malice and concoction to such recovery. In addition to that, the crime-empty recovered from the place of incident was shown to have been fired from '12 bore gun, allegedly recovered from the accused convict. The relevant evidence on this point is the report of ballistic expert, Fah. P.N. Thus, the recoveries made in the case are found quite relevant and connecting the convict with the liability.
7. It is time-honoured norm of justice that as a safegvird and expediency, Court may look for corroboration of interested witnesses, in order to record conviction. In the instant case, it is proved that the ocular evidence is of related witnesses who, of course, are not shown to be interested, inimical or prejudicial, yet the evidence finds independent corroboration from :-
(i) the recovery of crime-empty recovered from the place of incident and the recovery of gun, the weapon of offence, at the instance of the convict
(ii) the medical report ; and
(iii) the fact of absconsion of the convict immediately after the occurrence and his arrest after a considerable duration.
8. The appellant was charged and tried for an offence of murder under section 5 of the Islamic Penal Laws Act, 1974. The ordinary sentence for an offence under section 5 of the Act is `Qisas'.
Section 26 of the Act contemplates that notwithstanding anything contained in the Evidence Act of 1872 or any other law for the time being in force, in the cases of punishment of Hudood and Qisas, the standard of evidence shall rest on the testimony of two male Muslim witnesses. Thus, in order to award conviction of `Qisas'. It is a condition precedent under section 26(1) of the Act that Court should have the testimony of two male Muslims, so as to record sentence of Hadood or 'Qisas'. The law is not shown to entertain a exception to the rule. Section 24 of the Act, on the other hand, provide that in absence of requisite number of witnesses, to provide evidence of required, the accused shall not be liable to sentence of Hadd or `Qisas'. The trial Court, in such cases, is authorised to award one of the sentences entered in section 3 of the Act. The sentences contained under section 3 of; the Act are :
1. Sentence of death.
2. Hadd.
3. `Qisas'.
4. Tazeer.
5. Diyyat.
6. Deprivation from inheritance of the deceased.
7. Imprisonment.
' The sentence of imprisonment is further categorised as:
(i) Rigorous imprisonment ;
(ii) simple imprisonment ; and
(iii) solitary confinement.
' It is already noticed elsewhere that prosecution was not shown in possession of testimony of two adult male Muslims, as such the condition contained under section 26(1) of the Act was not fulfilled.
Alternatively, the Court was 'left with no choice except to revert to section 24(1) read with section 3 of the Act. As stated earlier; one of the alternate sentences entered under section 3, is `Tazeer', `Diyyat' and imprisonment. The law gave discretion to the Court to award one of the alternate sentences. In the present case, the discretion exercised by the trial Court resulted in awarding the sentence of rigorous imprisonment for life. We are not shown by the learned Additional Advocate- General as to how discretion was exercised improperly or arbitrarily by the trial Court. In our own estimation, when the sentence of `Qisas' I s not found enforceable, the sentence of rigorous imprisonment for life, obviously, satisfies the ends of justice.
9. Our conclusions are. That the- objections raised the appeal against the conviction are not well- founded. The conviction is, therefore, sustained. The objection for conversion of life imprisonment into death is equally not found persuasive. The appeal as well as the petition, both are dismissed.