' Both the aforesaid appeal and the reference pertain to the judgment of the District Criminal Court, Kotli, dated 31-12-1994, whereby the sentence of Qisas was awarded to the appellant. Through the appeal, the appellant has sought the annulment of the judgment of the District Criminal Court, Kotli, whereby the sentence of Qisas was awarded to him, whereas a reference has been made for the confirmation of the sentence of Qisas. As both pertain to the same case and judgment, therefore, both shall be disposed of through this single judgment.
2. The succinct facts forming the background of the instant appeal and the reference are that on 8-3-1991, a case under section 5 of the Islami Tazeerati Qawanin Nafaz Act, 1974, was registered against the appellant at Police Station Khui Ratta. Briefly stated the prosecution case as unfolded in the F.I.R. Is that on 7-3-1991, Muhammad Hanif (now deceased) was going towards Pariy Bazar for bringing sweet on the occasion of birth of his second child. When he reached near Mathy-Jand Primary School at 12-30 p.m., he met Muhammad Shabir son of Muhammad Sadiq. He started talking with him, meanwhile Muhatimad Ramzan came there armed with a hatchet. He inflicted the injury from the front side of hatchet on the head of Muhammad Hanif. Muhammad Hanif fell down, upon which Muhammad Ramzan inflicted the other injury from the backside of the hatchet on the left temporal region. On the noise of Muhammad Shabbir, Muhammad Saddique son of Shah Muhammad reached on the place of occurrence, upon which Muhammad Ramzan ran away along with the hatchet from the place of occurrence. The father of Muhammad Ramzan, Muhammad Hussain came there and after seeing Muhammad Hanif in an injured condition ran away from the place of occurrence. On the information of Muhammad Saddique, the complainant, Muhammad Ilyas and Shabir son of Karim also reached on the place of occurrence. They took Muhammad Hanif to Pariy Dispensary. He was referred to Mirpur Hospital. He succumbed to the injuries in the Mirpur Hospital. The cause of occurrence was that two or three months prior to the occurrence, Muhammad Hanif brought some branches of tree from the land of uncle of Muhammad Ramzan namely Muhammad Bashir. Muhammad Ramzan objected, upon which Muhammad Hanif gave a beating to Muhammad Ramzan.
3. After the registration of the case, the police conducted the investigation. On the conclusion of investigation the police forwarded the appellant to District Criminal Court, Kotli for facing the trial in the aforesaid offence. After the trial, the District Criminal Court, Kotli found the appellant guilty and awarded him the sentence of Qisas. Now the appellant has impugned this judgment of District Criminal Court, Kotli.
4. Mr. Abdul Majeed Mallick, the learned counsel for the appellant strenuously argued that the occurrence took place on 7-3-1991 at 12-30 p.m., while the F.I.R. Was lodged on 8-3-1991, so in this way there is delay of about 20 hours in the F.I.R. He further maintained that the police station was only at the distance of 24 miles from the place of occurrence and the transport was easily available on this road. He submitted that this is an afterthought F.I.R. It casts a serious doubt on the genuineness of the story put forward by the prosecution. It was next maintained by the learned counsel for the appellant, that after the occurrence, the injured person was brought to Mirpur Hospital. While Akalghar Police Station was in their way. Apart from this, the complainant was capable to inform the incharge of Police Station Mirpur regarding the occurrence, but there is no explanation that why the complainant remained silent for such a period. It was next contended by the learned counsel for the appellant that in the F.I.R. Only one witness of occurrence namely Muhammad Shabir was nominated. It was further stated in the F.I.R. That on the noise of Muhammad Shabbir, Muhammad Saddique reached on the place of occurrence. On the reaching of Muhammad Saddique, Muhammad Ramzan ran away from the place of occurrence. On the information of Muhammad Saddique, complainant Muhammad Zaman along with Muhammad Ilyas and Shabir reached on the place of occurrence. Muhammad Saddique did not appear as a witness nor he stated that he informed the complainant about the occurrence. It was next maintained by the learned counsel for the appellant that certain improvements have been made, which makes the case of the prosecution doubtful. While emphasizing on this point he submitted that neither Khadam Hussain, nor Baker Ali have been cited as eye-witnesses in the F.I.R. If they would have been eye-witnesses then naturally they would have been cited in the F.I.R., so no reliance can be placed on the evidence of Baker Ali and Khadam Hussain, nor reliance can be placed on the F.I.R. Because it is stated in the F.I.R. That the occurrence was narrated to the complainant by Muhammad Saddique and Muhammad Sadie never stated as such. It was further argued by the learned counsel for the appellant that another improvement was made by Muhammad Zaman witness in his statement, that Khadam Hussain told him about the occurrence.
If Khadam Hussain would have told him about the occurrence then he would have stated as such in the F.I.R. This improvement cast a serious doubt on the story put forward by the prosecution. It was next maintained by the learned counsel for the appellant that according to the complainant and Muhammad Shabir, the first injury was inflicted from the front side of the hatchet and the second injury from the backside of the hatchet, while no injury with sharp-edged weapon was found on the person of deceased by the doctor. This state of fact lends support to the version that no one witnessed the occurrence. It was next maintained by the learned counsel for the appellant that in the site plan no place was shown, where Khadam Hussain was grazing his goats. If he would have been grazing his goats near the place of occurrence then the place should have been shown in the map. But there is nothing like such in site plan. Khadam Hussain has been stalled later . On as a witness, so no reliance can be placed on the statement of Khadam Hussain. It was further contended by the learned counsel for the appellant that Khadam Hussain in his statement stated that Muhammad Hanif was lying on the ground from where he tried to pick him up, but he could not pick him up. Shabir made an effort for providing water for drinking on the ground, whereas Muhammad Shabir stated that Bashir picked him up and kept the head of deceased in his lap and made an effort for providing water to drink. This contradiction reveals that both of them were not present on the place of occurrence. It was next contended by the learned counsel for the appellant that according to Nazam Hussain witness of the recovery of the hatchet, the hatchet was given by the appellant to police. While according to Muhammad Younas the hatchet was given by the father of the accused-appellant. This contradiction reveals that no hatchet was recovered at the instance of the accused-appellant. It was argued by the learned counsel for the appellant that this is an unseen occurrence. Muhammad Shabir and Khadam Hussain have been shown as chance witnesses. The Court must be cautious, while relying on the statements of chance witnesses. He referred PLD 1964 Kar. 428, PLD 1963 SC 17 and PLD 1970 Kar.
300. He further maintained that the evidence of the doctor is inconsistent to the version of the prosecution. The entire case of the prosecution is based on meagre, scant and desultory evidence; rather the entire evidence of the prosecution is agglomeration of contradictions. Therefore, no reliance can be placed on such an evidence. It was alternatively argued by the learned counsel for the appellant that the accused-appellant is a young boy of 18 years of old. Even according to the story of the prosecution he did not come from home with the intention to commit the occurrence.
He took hatchet from Khadam Hussain for inflicting injury on the head of Muhammad Hanif deceased, neither he was sitting in the way nor he was aware of the fact that Muhammad Hanif deceased will pass from there. Therefore, it was not the case of extreme penalty.
5. While controverting the arguments. Of the learned counsel for the appellant, the learned counsel for the complainant Mr. Abdul Baseer Qureshi, contended that the appellant committed murder of a young man of 22 years old, who was going towards Bazar for bringing sweet on the occasion of the birth of his second child. The accused-appellant committed bestial act of murder of a young man and engraved indelible feeling of sorrow on the widow and young sons of the deceased. He submitted that the case of the prosecution is based on clinching evidence. While emphasizing on this point he submitted that Muhammad Shabir, Khadam Hussain and Baker Ali are the eye- witnesses and there is no contradiction among these witnesses. There is complete unison among these witnesses. It was next maintained by the learned counsel for the complainant that no doubt the Court should be more cautious in accepting the testimony of chance witness, but Muhammad Shabir, Khadam Hussain and Baker Ali do not come within the ambit of chance witnesses. Shabir and Baker were students of the school and they used to go to school by this way, where the occurrence took place and their presence on the way was quite natural.
' Therefore, they did not come within the ambit of chance witnesses. He further submitted that no suggestion was put to these witnesses by the defense that the place of occurrence is not a way.
Therefore, it is an admitted fact that the place of the occurrence was the way of school which goes from the school to the houses of both the witnesses. It was further contended by the learned counsel for the complainant that no enmity was suggested to all the three and other prosecution witnesses. They were having no enmity with the appellant. Therefore, their evidence could not be discarded and disbelieved. It was further contended by the learned counsel for the complainant that although there was delay of 20 hours in the F.I.R., but when the complainant who was the uncle of the deceased found Muhammad Hanif (now deceased) in the injured condition, then firstly he instead of proceeding towards the police station rushed towards hospital for saving the life of Muhammad Hanif which is quite natural. Therefore, this delay will not confer any benefit to the appellant. He further submitted that the evidence of the eye-witnesses is corroborated from the medical report and the blood-stained hatchet was also recovered at the instance of the appellant.
Sardar Muhammad Saleem Khan, S.H.O. Deposed before the Court that the hatchet was recovered at the instance of appellant, but he was not cross-examined. Therefore, the recovery of the hatchet is an admitted one. He further submitted that when the witnesses were having no enmity with the appellant then why they would have falsely implicated him. It was next contended by the learned counsel for the complainant that the normal penalty in case of -murder is death sentence and the lower Court has rightly awarded the death sentence to the appellant. The judgment of the lower Court is based on sound and cogent reasoning and warrant no interference.
6. I have heard the learned counsel for the parties and perused the relevant record.
7. In a criminal case, the burden lies on the prosecution to prove the case beyond reasonable doubt. It is well-celebrated principle of the appreciation of the evidence, that while appreciating the evidence, the Court has to sift the grain from the chaff and if, after such appreciation, the Court reaches on the conclusion that the offence is established against the accused, only then, the punishment can be awarded to the accused. In the instant case, the case of prosecution is based on:--
(i) The evidence of three eye-witnesses;
(ii) Evidence of recovery of hatchet; and
(iii) The evidence of Dr. Muhammad Bashir, C.M.O., D.H.Q. Hospital, Mirpur and on the other circumstantial evidence.
8. The question which requires determination in the instant case is whether the case is proved by the evidence of three eye-witnesses. The version narrated by the aforesaid three eye-witnesses is corroborated from the evidence of doctor and the witnesses of the recovery of the hatchet. Apart from this, whether the version adapted by the complainant also finds corroboration from the other circumstantial evidence or not?
9. As the contention of the learned counsel for the appellant is that there is delay of about 20 hours in the F.I.R. And no explanation of such delay is given in the F.I.R. The perusal of the record shows that according to the prosecution, the occurrence took place on 7-3-1991, at 12-30 p.m. And the F.I.R. Was lodged on the next day i,e,, on 8-31991 at 5 a.m., so, in this way, there was delay of about 17 hours in the F.I.R. There is no explanation of such a delay in the F.I.R. It is pertinent to note that the complainant was not an eye-witness and he was the real uncle of the deceased Muhammad Hanif. When he reached on the place of occurrence, he found Muhammad Hanif (now deceased), in an injured condition. It seems that he firstly, instead of proceeding towards the police station, preferred to rush towards the hospital for saving the life of the victim. At the relevant time, he was more worried about the life of the deceased than the initiating of proceedings against the accused. It was quite natural. Such an attitude can be expected from any rational man of prudence. He immediately rushed towards Mirpur Hospital. In Mirpur Hospital, when the victim succumbed to the injuries, then, he lodged the F.I.R. At the Police Station Khui Ratta, so, this delay does not seem to be intentional one. It also cannot be ignored that when the complainant took Muhammad Hanif injured to Chowk Sahaban Dispensary, then Abdul Ghafoor told him that the patient is in a serious condition, so, he was referred to Mirpur Hospital, therefore, the complainant, instead of proceeding towards Khui Ratta Police Station, which was far away from Mirpur proceeded towards Mirpur where better facilities for medical treatment were available, as such, the delay in question was quite natural. Simply on the basis of the delay of the F.I.R., it cannot be said that the story put forward by the complainant is not genuine one, unless some fabrication or exaggeration is suggested or found. Neither as such was suggested to the complainant nor, found in the F.I.R.
10. As the next contention of the learned counsel for the appellant is concerned that Akalgarh Police Station was in their way and they did not inform the in charge of the Police Station of Aligarh nor he made any report at Mirpur Police Station. It has no substance because at that time, as stated above, the complainant was worried about the life of the victim. He was not much interested for initiating proceeding against the accused but he was more interested in saving the life of the victim which was quite obvious. Therefore, he could not lodge the report at the aforesaid police stations.
11. As the further contention of the learned counsel for the appellant is concerned that in the F.I.R. It is stated that Muhammad Saddique reached on the place of occurrence, and he informed the complainant about the occurrence, but he did not appear as a witness, therefore, the evidence of the complainant has no value in the eye of law.'1 agree with the contention of the learned counsel for the appellant. In F.I.R.; it is stated that on the information of Muhammad Saddique, the complainant along with Shabir and Ilyas reached the place of occurrence. According to the F.I.R., the complainant %Vas informed by Muhammad Saddique, but Muhammad Saddique did not appear as a witness. The complainant himself has not seen the occurrence nor he was present at the place of occurrence. According to the F.I.R., the occurrence was narrated to the complainant by the said Muhammad Saddique. When according to the F.I.R., the evidence of complainant Muhammad Zaman is bakd on the information of Muhammad Saddique, then it is obvious that Muhammad Saddique told about the occurrence to the complainant, when he reached on the place of occurrence. He incorporated the story in the F.I.R. On the basis of the information furnished to him by Muhammad Saddique. Therefore, the F.I.R. Was evidently hearsay and not admissible in the evidence under Article 71 of Qanun-e-Shahadat, for comprehending Article 71, I would like to reproduce it:-- "71. Oral evidence must be direct.--- Oral evidence must, in all cases whatever be direct; that is to say:-- ' If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; ' If it refers to a fact which could be heard, it mist be the evidence of a witness who says he heard it; ' If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; ' If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: ' Provided ...
' Provided also .... "
The word "must" appearing in the opening part of this Article imposes a duty upon the Court to insist upon the production of direct evidence. The use of the word "must" conveys the basic intention of the Legislature. In interpretation of Statutes, the intention of the Legislature is of supreme importance. For ascertaining the intention and purpose of the Legislature one has to divert towards the words used in the Statute. A Statute is to be expounded according to intention of its maker and if the words used in the Statute are precise and unambiguous, no more is required than to expound those words in their natural and ordinary sense. The words themselves will pretend the basic intention of the Legislature. The aforesaid view finds support from the Maxwell's Interpretation of Statutes, Eleventh Edition, p.1, which reads as under:-- "A Statute is the will of the Legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to ' be expounded according to the intent of them that made it." If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature."
' The intention of the Legislature as embodied in the Statutes constitute the law thereof. It is the essence of a Statute. While interpreting the Statutes one must free the expression from any meaning or concept, which may shade, obscure or completely hide its true nature and purpose.
Naturally, the legislative purpose is the reason, why the particular enactment was passed by the Legislature. The words used in Article 71 "Oral evidence must in all cases whatever be direct" are very simple and clear. These words indicate that the basic intention of Legislature was to rely upon the direct evidence and according to the aforesaid principle only the direct evidence was made admissible. The Court while interpreting the Statutes will keep in consideration the basic purpose of the legislation. The word "must" conveys that the basic purpose of Article 71 was to only consider the direct evidence. By using the word "must", the Legislature intended that the reliance should be placed only on the direct evidence. It is also well-celebrated principle of law that whenever, a statute or a document is to be C construed it must be construed according to the ordinary general meaning of the words used in the Statute. Another well-recognized rule of interpretation was to give plain meaning to the words and expression used in the Statute. Because the intention of the Legislature is to be ascertained from the language used in the Statutes. This principle was analyzed in Crazies on Statute Law, 7th Edn. At p.92, which reads as under:- "With regard to what is meant by the expression, the plain meaning of the words of a statute', it is necessary on all occasion to give the Legislature credit for employing those words which will express its meaning more clearly than any other words; so that if in any particular instance it can be shown that where there are two expressions which might have been used to convey a certain intention, but one of these expression will convey that intention more clearly than the other, it is proper to conclude that, if the Legislature uses that one of the two expressions which would convey the intention less clearly, it does not intend to convey that intention at all, and in that event it becomes necessary to try to discover that intention it did intend to convey."
The plain and the simple meaning of the words used in Article 71 conveys that only the direct evidence is admissible and it is mandatory to rely upon the direct I evidence and indirect evidence is not admissible.
' While commenting on the hearsay evidence, N.D. Base-- in his Law of Evidence, 9th Edition stated as under:- "It seems agreed that what another has been heard to say is no evidence, because the party was not on oath, also because the party who is affected thereby had not an opportunity of cross- examining. Ken, C.J., in Coleman v. Suthwick (1) as quoted by Basu, at p.908 of his Law of Evidence (9th Edition), has summarized the rule of hearsay as follows:-- 'Why not produced S to testify what he told the defendant, instead of resorting to a by-stander who heard what he said hearsay testimony is from the very nature of it attended with all such doubts and difficulties, and it cannot clear them up. A person who relates a hearsay is not obliged to enter into any particular; to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to recover any ambiguities; he entrenches himself in the simple assertion that he was told so, and bases the entire burden on his dead or absent author ...
The plaintiff by means of these species of evidence would be taken by surprise and he precluded from the benefit of cross-examination of S as to all those material points which have been suggested as necessary to throw full light on his information.
' Morin at page 692 of his Law of Evidence (1974 Edition) has, under the heading 'reasons for the exclusion of hearsay', this to say on the subject. 'The rejection of hearsay is based on its relative untrustworthiness for judicial purposes owing to (i) the irresponsibility of the original declarant, whose statements were neither on oath, nor subject to cross-examination; (ii) the depreciation of truth in the process of repetition; and (iii) the opportunities for fraud, its admission would open; to which are sometimes added; (iv) the tendency of such evidence to protract legal inquiries and (v) to encourage the substitution of weaker for stronger proofs."
' The aforesaid view lends full support to the principle enunciated in Article 71 of Qanun-e- Shahadat, to reject all the hearsay evidence to prove any fact, which in its nature is susceptible of direct evidence by a witness, who can speak from his own knowledge being under (sic) oath, and has to face the cross-examination. The crux of the above discussion is that evidence of A who states that it was told to him by B would only be admissible in the evidence in proof of the fact that the said statement had actually been told to him by B. But the same will be inadmissible in proof of the contents of the statement unless, B appears and states that he told such and such to
12. In the light of what has been stated above, evidence of the complainant was a hearsay evidence, it would have only been admissible if Muhammad Saddique would have appeared as a witness and stated that he narrated the whole occurrence to the complainant, but Muhammad Saddique did not appear as a witness, therefore, the F.I.R. Lodged by the complainant was not admissible as required under law. This view finds support from PLD 1964 Kar.
428.
13. As far the next contention of the learned counsel for the appellant is concerned that only one eye-witness, namely, Muhammad Shabir was nominated in the F.I.R. Neither Baker nor Khadam Hussain was cited as witness in the F.I.R. Further improvement was made, therefore, no reliance can be placed on the statements of Baker Hussain and Khadam Hussain. As stated above, that the complainant was not an eye-witness. He was not present at the place of occurrence, but he reached the place of occurrence after the occurrence had taken place. When he reached on the place of occurrence, at that time, Shabir and Baker had left the place of occurrence, therefore, if he has not nominated Baker and Khadam eye-witnesses, then, it will not make any difference because he has not seen them on the place of occurrence. Even otherwise, the F.I.R. Is just a document for bringing the Investigating Agency into operation. It is not necessary that each and every detail should be mentioned in the F.I.R., if the complainant would have been an eye-witness, then, it was necessary for him to nominate all the eye-witnesses present at the place of occurrence during the occurrence. While the complainant himself is not an eye-witness of the occurrence. He himself heard about the occurrence from other person. Even otherwise, the F.I.R.
Lodged by the complainant is a hearsay on which no reliance can be placed, nor the statement of the complainant attains any value. Then if he has not cited the eye-witness, it will not make any difference.
14. As the next contention of the learned counsel for the appellant is concerned that in F.I.R., it is stated that the appellant inflicted injury on the head of Muhammad Hanif from the front side of his hatchet, but according to the opinion of the doctor, all the injuries were caused with the blunt weapon. No doubt, that the complainant stated in the F.I.R. That the first injury was caused from the front side of the hatchet on the head of the deceased by the accused. As stated above, that the complainant was not an eye-witness nor he saw the accused while inflicting injuries on the person of the deceased, but the occurrence was witnessed by Muhammad Shabir, Baker Ali and Khadam Hussain. None of these three eye-witnesses stated that the injury from the front side of the hatchet was inflicted to the deceased by the accused-appellant. If any of the three aforesaid witnesses would have stated that the injury from the front side of the hatchet was caused by the appellant, only then, it would have been material.
15. As the contention of the learned counsel for the appellant is concerned that Khadam Hussain stated that Muhammad Hanif was lying on the ground from where he tried to pick him up but he could not pick him up, Shabir made an effort for providing water for drinking on the ground, whereas Muhammad Shabir stated that Bashir picked him up and kept the head of the deceased in his lap and made effort for providing water to drink. It has no substance. No doubt, Khadam Hussain P.W. Stated in his statement that we tried to pick him up, but he could not be picked up.
Shabir tried to provide water for drinking on the ground but he could not drink. He has also stated that Muhammad Saddique picked him up and kept him in his lap but he could not speak. There is complete unison on the aforesaid point among the witnesses Shabir and Khadam Hussain. Shabir P.W. Also stated in his cross-examination on the last page of his statement, that Muhammad Saddique picked up the head of the deceased Muhammad Hanif and kept it in his lap and he made an effort to provide water for drinking to the deceased, but he also stated at page 5 in his statement that Muhammad Saddique said to him to bring water and he made an effort to provide water for drinking po the deceased, in the presence of Baker and Khadam Hussain, but Hanif deceased could not drink the water, therefore, there is complete concordance among the statements of both the witnesses on the aforesaid point.
16. As the next contention of the learned counsel for the appellant is concerned that there is a contradiction between the statements of Nazim Hussain witness of recovery and Muhammad Younas. According to Nazim Hussain, the hatchet was produced by the accused-appellant Muhammad Rainzan in his presence, whereas Muhammad Younas stated that the hatchet was produced by the father of the accused-appellant. No doubt, that this is a serious contradiction.
Among both the witnesses, but it also cannot be ignored that Sardar Muhammad Saleem, S.I.
Police also appeared as a witness, who made the recovery and prepared the recovery memo. Of the hatchet (the weapon of offence). He deposed in his statement that he recovered the hatchet (the weapon of offence), at the instance of the accused and prepared the recovery memo. Exh.P.Y.
This portion of his statement was not challenged during the cross-examination. Only two questions were asked from him during the cross-examination. No question regarding the recovery of the hatchet was asked from him, thus, his statement, that the recovery of the hatchet was made at the instance of the accused, is admitted to the accused-appellant. It is well-celebrated principle of law that any I G portion of the statement not challenged during the cross-examination, shall be deemed to be admitted one, therefore, although Nazim Hussain and Muhammad Younas P.Ws.
Failed to prove the recovery of hatchet, but from the evidence of Sardar Muhammad Saleem, S.I.
Police the recovery of the hatchet (the weapon of offence) is proved, beyond any reasonable doubt.
17. Another important point was raised by the learned counsel for the appellant that Shabir and Baker are the chance witnesses, therefore, the Court should be more cautious while relying upon the testimonies of the chance witnesses. No doubt, the Court should be cautious while relying upon the statement of chance witness, but the question emerges whether Shabir and Baker were chance witnesses? A chance witness is one who has no plausible explanation for his presence near the place of occurrence at the time of occurrence and he just reached on the place of occurrence by way of chance. A witness who gives acceptable explanation, for his presence at the place of occurrence cannot be considered as a chance witness. As Shabir and Baker were concerned, they were the students of school. On the day of occurrence, they were coming towards their houses from the school. They did not reach the place of occurrence by a chance, but it was their usual way of the house from the school. A person using a particular way daily cannot be considered as a chance witness, if some unfortunate incident takes place in the way while he was passing from there. They did not reach on the place of occurrence by way of a chance. So they were not the chance witnesses, but they can be called the natural witnesses of the occurrence. This view finds support from PLD 1971 Kar. 239, 1991 PCr.LJ Note 15 at p.10 and PLD 1991 SC 397.
18. According to the version of the prosecution, Shabir, Baker and Khadam Hussain were the eye- witnesses of the occurrence. Shabir Hussain deposed before the Court that on 7-3-1991, he and Baker Ali were going towards their houses from the school, while Muhammad Hanif (deceased) was going towards Pariy Bazar. He met Muhammad Hanif. Muhammad Hanif asked them that why they came early from the school. Upon which he told him that today is Thursday so, he came earlier from the school. He inquired from Muhammad Hanif that where he is going? Upon which, he narrated that he is going to Pariy for bringing sweet on the occasion of the birth of his second child.
They were talking, meanwhile Muhammad Ramzan appellant appeared and inflicted injury on the head of Muhammad Hanif with the hatchet. Muhammad Hanif fell down, then he inflicted another injury from the said hatchet. At the time of occurrence, he, Baker Ali and Khadim Hussain were present on the place of occurrence. Saddique and Sufi Muhammad Hussain came on the place of occurrence after the occurrence. Baker Ali P.W. Also appeared before the trial Court as a witness and deposed that he and Shabir were studying in the Pariy School. They were going towards their houses, in the way Khadam Hussain was grazing his goats. Muhammad Hanif met them in the way.
He asked from them, why they came early from the school, they told that today is Thursday, then he inquired from Muhammad Hanif that where he is going? Upon which, he narrated that he is going towards the shop. Meanwhile, accused-appellant came there and inflicted injury with the hatchet to Muhammad Hanif, who fell down, then he inflicted another injury on the left temporal region. They raised noise upon which Muhammad Saddique and Muhammad Hussain reached there. Khadam Hussain P.W. Also appeared as a witness and he stated that on 7-3-1991, he was grazing his goats, Shabir and Baker P.W. I were coming from Pariy. He shook hand with Shabir P.W.
They asked him to accompany them, but he did not accompany, as he was grazing his goats. They went away. Muhammad Ramzan also came there and shook hand with him and demanded the hatchet from him for seeing. After taking hatchet, he started walking. He demanded the hatchet from him, upon which he said 'stop, I shall give it to you' and started walking. He also followed him, he saw Shabir and Muhammad Hanif while shaking hands and talking with each other.
Muhammad Ramzan accused inflicted injury with hatchet on the head of Muhammad Hanif (now deceased). He fell down, then he inflicted another injury upon the temporal region of Muhammad Hanif (now deceased) and appellant Muhammad Ramzan ran away from the place of occurrence alongwith the hatchet. They raised noise. He, Baker and Shabir witnessed the occurrence. There is a complete unison among them, regarding the:--
(i) Place of occurrence;
(ii) Manner of occurrence;
(iii) Time of occurrence;
(iv) Weapon of offence.
' Although these witnesses were cross-examined, but no capital could be made out during the cross-examination.
19. No enmity was suggested, by the defense to all the aforesaid three witnesses. Neither they were having any enmity with the accused, nor they were closely related to the deceased. It is also notable that simply on the basis that the witnesses have no enmity and appears to be independent do not necessarily mean that what they state is true. Indeed, absence of malice is a factor which assumes importance in assessing the credibility of the witness and place him in a favorable position, but it is not the sole criteria. The truth or falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. Accepting the evidence without considering the circumstances would be totally inconsistent with the dispensation of justice. It is only the scrutiny of the evidence which makes it possible to say with certainty that the evidence is immune from all taints and is worthy by belief. As stated above that no enmity was suggested to the aforesaid three eye-witnesses, but simply on the basis that the witnesses have no enmity with the deceased, their evidence shall not be admitted, but their evidence shall be appreciated along with the other evidence, if the other evidence also lends corroboration to their evidence and then, their evidence shall be considered as convincing one.
20. I have gone through the entire statements of the aforesaid three eyewitnesses and after utmost muse did not find subtle doubt about the presence of the eye-witnesses at the place of occurrence. There is no such contradiction among the statements of these three eye-witnesses from which a conclusion can be drawn. That any one of them was not present at the time of the occurrence and has not seen the occurrence. There is a complete concordance and their evidence regarding the time of occurrence, place of occurrence, manner of occurrence and weapon of offence,. Is quite reluctant. When there is complete unison among the witnesses on the aforesaid points and they were having no enmity with the accused-appellant or any relation with the deceased then their evidence is above from any doubt and is inspiring confidence.
21. As the evidence of the recovery of the hatchet is concerned, there is a contradiction between the witnesses of the recovery, Nazim Husain and Muhammad You as, but it will not make any difference because the Investigating Officer appeared as a witness. He deposed that the hatchet (the weapon of offence), was recovered at the instance of the accused-appellant. He was not cross-examined on this point, therefore, the recovery of hatchet is admitted one. The version adopted by the aforesaid three eye-witnesses is also supported from the evidence of the recovery.
22. It is also pertinent to note that Dr. Muhammad Bashir appeared as al K witness and he also corroborated the story put forward by the prosecution.
23. Although as stated above that the F.I.R. Was not admissible and no reliance can be placed on the statement of Muhammad Zaman complainant, but as stated above that in a criminal case the grain has to be shifted from the chaff. , Therefore, leaving aside the F.I.R. And the statement of the complainant, the L prosecution has proved the case beyond any reasonable doubt from the:--
(i) Evidence of eye-witnesses;
(ii) Evidence of Sardar Muhammad Saleem, S.I. Regarding the recovery of hatchet (the weapon of offence); (iii)' Evidence of Dr. Muhammad Bashir, who conducted the post-mortem; (iv) Report of Chemical Examiner.
24. Now the question requiring determination is . Whether in the circumstances of the case, the sentence of Qisas could be awarded to the appellant or some other sentence shall be sufficient to meet the ends of justice. The perusal of the record shows that the appellant was a young boy of 18 years old at the time of occurrence. He. Did not come from the house armed with any weapon of offence. If he would have any intention to commit murder, then, he would have armed with some weapon. There is also nothing on the file from which it can be said that the appellant was aware of the fact that the deceased Muhammad Hanif will go to Party Bazar for bringing the sweet on the occasion of the birth of his second child, nor he was sitting in the way with a planning but while passing from the way, he saw Hanif deceased passing from there and took the hatchet from Khadam Hussain and inflicted the injury on the head of Muhammad Hanif deceased. He fell down.
He did not commit the instant occurrence with pre-planning, but the occurrence was committed on the spur of the moment. The question of sentence requires utmost care. The sentence must be measured in golden scale and should be properly balanced to deter the rest of the society from committing the crime, without being unnecessary harsh.
25. In a murder committed on the spur of moment without any preplanning, the life imprisonment will be sufficient to meet the ends of justice. This view finds support from PLD 1975 Lah. 619 and 1974 PCr.LJ 1088.
26. Keeping in view the age of the accused-appellant and the circumstances' in which the murder was committed, the life imprisonment shall be sufficient to meet the ends of justice. Thus, the sentence of Qisas is converted into the life imprisonment. As the sentence of Qisas had been converted into the life l imprisonment, therefore, no question arises for the confirmation of the sentence of Qisas. Both, the appeal and the reference are disposed of in the terms indicated above.
Sentence reduced. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.