1. ' MUHAMMAD YOUNAS SURAKHVI, J.--- This appeal is directed against the judgment and order of Shariat Court, dated May 10, 1993 whereby, while dismissing the appeal of appellant against the order of Additional District Criminal Court, Pallandri, dated September 30, 1986, the conviction recorded by the trial Court was confirmed, arises in the following circumstances.
2. ' The appellant Qadeer Hussain was tried and convicted by Additional District Criminal Court, Pallandri for the charge of murder and attempt to murder. He was sentenced to 25 years under section 302, A.P.C. And 7 years' rigorous imprisonment for the offence under section 307, A.P.C.
3. ' The occurrence, according to the prosecution, took place in the morning of December 12, 1981 when Sain Said Muhammad and his wife, Mst. Begum Jan resident of Pallandri were busy having their breakfast. By a voice calling Sain Said Muhammad to come out of his house, he got up and the moment he stepped out of the door of his house he was shot at by accused-appellant. Having been hit and injured by the shot Sain Said Muhammad fell down and breathed his last on the spot.
4. P.Ws. Muhammad Iqbal and Mushtaq Ahmad on hearing the noise and gun fire-shots were attracted at the place of occurrence. After remaining some time at the place of occurrence P.W.
5. Muhammad Iqbal then went back to his house and informed his father Roshan Din that Sain Said Muhammad had been murdered by accused Qadeer Hussain. The occurrence took place at about 6-30 a.m. Roshan Din went to the house of his brother Sain Said Muhammad and found him lying dead. He was narrated the incident by Mst. Begum Jan and he thereafter proceeded to police station and lodged a report of occurrence stating therein that his brother Sain Said Muhammad, who lived a secluded life used to earn his living by issuing amulets to the people. Accused Qadeer Hussain suspected Sain Said Muhammad of practising witchcraft and was helping Mst. Khurshid Begum, the mother-in-law of accused by his witchery in sowing seeds of discord and hatred between the accused, his parents and other family members. Nursing the aforesaid grudge the accused fired a rifle shot at Sain Said Muhammad which resulted in his death. The accused appellant fired a second shot at Mst. Begum Jan, the wife of Sain Said Muhammad, however, the fire missed the target and Mst. Begum Jan escaped miraculously. On the report filed by Roshan Din the brother of the deceased, and the first informant a case under section 302/307, A.P.C. Read with section 5 of Islamic Penal Laws Enforcement Act was registered against the accused-appellant at Police Station Pallandri.
6. ' After the completion of investigation the accused-appellant was forwarded to stand his trial for the offences alleged to have committed by him. On the establishment of Additional District Criminal Court at Pallandri the case was transferred to it for trial. After the conclusion of the trial and culmination of the proceedings, the accused-appellant as said earlier was finally convicted and sentenced by the Additional District Criminal Court, Pallandri vide its order, dated February 2, 1990.
7. ' Feeling aggrieved by the order of conviction recorded by Additional District Criminal Court, Pallandri, the accused-appellant filed an appeal before the Shariat Court of Azad Jammu and Kashmir which was dismissed vide the impugned order, dated May 10, 1993. It is the aforesaid order of the Shariat Court, the legality and validity of which has been now assailed through this appeal.
8. ' Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, vehemently contended that the instant case has been tried by the Additional District Criminal Court, Pallandri constituted under Islamic Penal Laws Enforcement Act. The appellant-accused was challaned under section 302/307, A.P.C. Read with section 5 of the Islamic Penal Laws Enforcement Act. So, it was enjoined upon the trial Court to conduct the purgation of the witnesses and to formulate an opinion as to whether the witnesses were just and Aadil. Having ignored the mandatory provision of law with regard to purgation of the witnesses the trial Court and Shariat Court have committed a serious illegality rendering the conviction into a nullity.
9. ' The learned counsel maintained that the accused-appellant in this case had faced the agony of a prolonged and protracted trial for a period of about 13 years and his being an extenuating circumstance was sufficient for the trial Court as well as the Shariat Court to take the lenient view in matter of awarding sentence to the accused-appellant.
10. ' The learned counsel contended that the occurrence, as alleged by the prosecution, did not take place at the time and in the manner as claimed by the prosecution. The precised contention of the learned counsel for the appellant is that the occurrence took place in the dark hours of night and the real culprit could not be identified by the witnesses. So, the accused was falsely implicated out of the previous enmity. The learned counsel for the appellant while arguing the case although did not seriously oppose the appreciation of the evidence made by the trial Court and Shariat Court, however, in the casual manner he emphasised that the prosecution version was full of serious discrepancies. He also maintained that the post-mortem report was in conflict with the ocular version of the prosecution witnesses and it had rendered the impugned judgment as being invalid.
11. Besides the recovered articles were sent for examination at a belated stage and no evidentiary worth could be attached to the recoveries.
12. ' Converting the arguments addressed at bar on behalf of the appellant Mr. Abdul Rashid Kanahi, Assistant Advocate-General, submitted that from the prosecution evidence a dear case stood proved against the appellant beyond any reasonable shadow of doubt. The occurrence was witnessed by Mst. Begum Jan, the widow of the deceased Sain Said Muhammad, besides there was evidence of P.Ws. Roshan Din, Muhammad Iqbal, Musthaq Ahmad and Khadam Hussain who although were not the witnesses of actual occurrence yet they are the persons who reached at the spot immediately after the occurrence, therefore, their evidence was very much admissible under law. Besides, recovery of crime weapon at the instance of accused-appellant empties, report of Serologist, Fire-arms Expert and post-mortem report were in the nature of strong corroborative evidence, submitted the learned counsel for the State. The impugned judgment having been passed by the Shariat Court on proper appraisal of evidence was perfectly valid, suffering from no legal infirmity. The learned counsel maintained that the appeal having no force was liable to be dismissed.
13. ' We have heard the points canvassed by the learned counsel for the parties and given our deep consideration to their respective contentions, after going through the evidence available on record.
14. So far as the first contention of the learned counsel for the appellant with regard to the purgation of the eye-witnesses is concerned, we may observe that in cases of Hudood and Qisas the purgation of witnesses is must. In cases of Hudood and Qisas tried by the Courts constituted under provisions of Islamic Penal Laws Enforcement Act of 1974, it is mandatory for the Court trying the case to conduct the purgation of the eye-witnesses so as to ascertain the veracity and righteousness of the witnesses. In this regard we may refer a famous judgment of this Court reported as State v. Amir Zaman Hanfi and 4 others PLD 1979 SC (AJ&K) 78 wherein the word Tazkia had been defined as:-- "A peculiarity and product of Islamic Procedure.--- `Tazkia', its scope and extent, distinguishable from 'cross-examination' and means clearing of a witness from accusation or suspicion cast upon him by opposite-party---`Tazkia' done by holding inquiry by Qazi, openly or secretly, himself or through an official purgator to ascertain whether witness making statement a person of unimpeachable character or just and righteous---`Tazkia', hence, neither a part of cross- examination nor a substitute for cross-examination---Cross-examination---Right of accused--- Tazika---Obligation on Qazi to ascertain righteousness of witness."
15. ' We may also refer that at one stage there were divergent authorities on the point of purgation of witnesses. One view was that the purgation should proceed the evidence of the witnesses, while the other was that the purgation should be conducted after recording the evidence of the witnesses. Similarly there was also a difference of opinion as to whether the purgation should be conducted by the Qazi alone or the Court. Nevertheless the controversy has now been resolved and it stands now settled that it is the Court who has to conduct the purgation of the witnesses and that the purgation should be conducted after recording the evidence of the witnesses. In this regard we may refer an authority of this Court reported as State v. Punnu Khan and 2 others .PLD 1984 SC (AJ&K) 1, wherein it was observed as under:- " `Tazkia'--- means purgation of witnesses---Tazkia can be conducted openly or secretly with the help of persons who are reliable and acquainted with life and character of witness---Purpose of inquiry is to make independent inquiry into conduct of witness through independent and reliable source so that person may not be condemned on evidence of unjust witnesses---Tazkia presupposes statements of witnesses and is not same thing as cross-examination--Tazkia must be conducted when statement of concerned witnesses stand concluded as such Tazkia before recording evidence is exercise in futility---Question of Tazkia arises only when accused throws reproach on witness---Accused accepting testimony of witness or confessing guilt or saying that witnesses were and correct to involve him in case---Court may not conduct Tazkia in such cases- --Supreme Court, however, directed that in future secret Tazkia may be conducted by Court and record of such secret Tazkia be maintained so as to make the same available for examination of superior Courts---Provision in law that only Qazi, one of members of District Criminal Court, would conduct Tazkia holding to be defective, Supreme Court observed that Tazkia is to be conducted by Court seized of case and not by one of its members---Immediate amendment in relevant law so as to bring same in conformity with Islamic principles of administration of justice was desired."
16. ' Section 26 of Islamic Penal Laws Enforcement Act postulates that the standard of evidence in cases of Qisas shall be two adult Muslim male witnesses. In absence of such standard sentence of Qisas could not be enforced. Subsection (2) of section 26 further postulates that in all cases of Hudood and Qisas, Tazkia-Tush-Shahood of witnesses shall be essential. In the instant case admittedly there is a single female eye-witness, namely Mst. Begum Jan, the widow of the deceased. The other witnesses are those who reached on the spot soon after the occurrence. They could not be termed as eye-witnesses. Therefore, the provisions of section 26 of the Islamic Penal Laws Enforcement Act are not attracted in the case. So, the trial Court by not conducting the purgation of the witnesses committed no illegality, which requires our interference.
17. ' The learned counsel for the appellant also maintained that the point with regard to purgation of witnesses was argued and agitated before the Shariat Court but it failed to give any finding on this important aspect of the matter. We regret that factually the position taken by the learned counsel for the appellant is not correct. The Shariat Court in its order recorded in the order-sheet, dated February 2, 1992 clearly maintained that the provisions of section 26 of Islamic Penal Laws Enforcement Act were not attracted in the present case.
18. ' We have carefully gone through the judgments recorded by the trial Court and Shariat Court. Both of them have not convicted the accused-appellant under section 5 of the Islamic Penal Law Enforcement Act. On the contrary they have found the accused-appellant guilty under sections 302 and 307, A.P.C. And awarded him a sentence of 25 years and 7 years respectively. In case an accused is convicted under the Penal Code it is not at all essential to conduct the purgation of the eye-witnesses. That requirement is only provided under a special statute and not under Penal Code. So, there being no substance in the contention of the learned counsel for the appellant, the same is therefore, repelled.
19. ' The next contention of the learned counsel for the appellant is with regard to the extenuating circumstance and his prayer for awarding a lesser sentence and taking a lenient attitude in the circumstances of the case. To this aspect of the case we will revert at an appropriate stage in the later part of this judgment.
20. ' On the point of time of occurrence and the manner of occurrence, according to learned counsel for the appellant, it took place during the dark hours of the night. The learned counsel pointed out that Khadam Hussain P.W. Had admitted in his evidence that after hearing the gun fire-shots and noise when he reached the place of occurrence, call for the morning prayer had not yet been given. On the aforesaid deposition of the witness the learned counsel submitted that the real culprit was not identified by the prosecution witnesses. P.W. Khadam Hussain when appeared as a witness stated before the Court in his evidence that immediately after hearing the gun shot he went running to the house of Sain Said Muhammad deceased and was told about the occurrence by his wife. He further stated that he had seen the accused running away from the place of occurrence towards Ziarat and then towards Pallandri Bazar. Of course it is correct that at one stage during the cross-examination the witness stated that when he visited the place of occurrence the time was about 6 a.m. And the call for morning prayer had not yet been given. The learned counsel for the appellant continued cross-examining the witness and when he further pressed the point with regard to the time of occurrence, the witness clarified that when he heard the sound of gun fire he had already offered his morning prayer. This part of the evidence is available at page No,45 of the trial Court's file. We also could not remain oblivious of the fact that the evidence of this witness was recorded on October 27, 1985, i,e, nearly after about 4 years.
21. Keeping in view the time gap reading his statement as a whole, the fact that he was subjected to a lengthy cross-examination and considering the evidence of this witness--alongwith evidence deposed by P.Ws. Roshan Din, Muhammad Iqbal, Mushtaq Ahmad and Begum Jan, we are of clear view that time mentioned by the witness was merely approximate and in fact the occurrence took place well after the morning prayer had been offered. Therefore, the argument on careful appraisal of evidence, is found to have no substance and is therefore, rejected.
22. ' Adverting to the point of discrepancies in the evidence of the prosecution witnesses we have ourselves gone through the evidence which is found to be of quality, confidence inspiring and the trial Court as well as Shariat Court committed no illegality in relying upon it. In our view the evidence of prosecution is worthy of credence on all material particulars of the prosecution story.
23. By now it is the settled law that minor discrepancies and contradictions not affecting the root of the prosecution case are to be ignored. The power of perception, retention of details of incident and recollection normally differs from man to man and case to case. Besides minor discrepancies are bound to occur in the statements of natural witnesses. In the instant case the evidence of Mst.
24. Begum Jan and the other witnesses who soon reached the place of occurrence and saw the accused running away is quite natural in the circumstances of the case and their evidentiary worth cannot be destroyed by minor and small discrepancies so as to make the prosecution case doubtful. So, the argument is found to be of no substance.
25. ' On point of so-called conflict of medical evidence, with the ocular version, the learned counsel strenuously argued that from injury No,1 described in the post-mortem report it appeared that bullet after hitting the chest of deceased travelled downwards. In the estimation of the learned counsel when the assailant fired the shot on the victim he was on the higher ground that the deceased. On careful consideration the argument is devoid of any force whatsoever. Injury No,1 as mentioned in the post-mortem report is a lacerated semi-circular wound over the chest involving the upper 1/3rd of sternum with the medial ends of both clavicles and upper ribs. From the description of the injury it becomes clear that bullet had hit the bony part and in such like cases it invariably deflects and changes the route. It seldom happens that bullet after hitting a hard bone would travel straight. Moreover, the argument on the point seems to be misconceived for the simple reason that when Dr. Syed Mushtaq Ahmad Gardezi who conducted the post-mortem report appeared as a witness in the trial Court he was not subjected to any cross-examination on the point, by the learned counsel for the appellant. As a matter of fact we find in his evidence that when the witness was asked during the cross-examination as to what was the position of assailant and victim at the relevant time of fire, the witness deposed that he could not tell it exactly. No suggestion was given to the witness that the assailant at the relevant time was on a higher surface than the deceased. So, in our view the argument on the point seems to be an afterthought.
26. ' On the point of delay in despatching the recovered articles for examination and opinion of experts the delay per se cannot be made basis for ruling the evidence out of consideration, as has been rightly pointed out by the Shariat Court. The objection taken by the learned counsel for the appellant was that delay in despatching recovered articles for examination and opinion was in itself sufficient to rule out of consideration that part of evidence, as according to him, the delay was not explained by prosecution. On perusal of evidence we find that no question was put to the police witness concerned as regard the explanation for delay or that there had been any substitution of the articles. We are of the view that delay simpliciter is no ground for discarding the evidence of prosecution.
27. ' Lastly the contention of the learned counsel for the appellant that the appellant had been suffering agony of a long and protracted trial for a period of about 13 years and remained in judicial lock-up throughout, so in his opinion it was an extenuating circumstance to award the appellant, a lesser sentence. We find that the contention has force. We, therefore, reduce the sentence of 25 years' imprisonment to life imprisonment. The learned counsel for the appellant did not raise the objection that the District Criminal Court cannot award 25 years imprisonment as a sentence. Since we are reducing this sentence this question does not arise for determination and may be examined in some other cases if occasion arises. So far as the sentence of attempt of murder under section 307 is concerned that remains intact.
28. On the basis of the analysis made above, finding the appellant guilty of offences under sections 302 and 307, A.P.C. We convict the accused-appellant under section 3 of the Islamic Penal Laws Enforcement Act read with section 24 for the sentence of life imprisonment and 7 years respectively. Both the sentences shall run concurrently. The accused appellant shall be entitled to the benefit of section 382-B of the Criminal Procedure Code. With the above modification in the sentence, the appeal merits no consideration, the same is, therefore, dismissed. /p>