IFTIKHAR HUSSAIN BUTT, J.- The above-mentioned to appeals have arisen out of an order of District Criminal Court Mirpur, passed on March 24, 1997 whereby the appellants Abid Hussain Shah and Raza Hussain Shah were convicted and awarded sentence of life imprisonment for 25 years each, for setting aside the same and acquittal of the appellants, whereas the other appeal has been preferred by Waris Hussain Shah appellant complainant for enhancement of sentence of life imprisonment to the sentence of Qisas or death and against the accused Tariq Shah and Wazir Hussain Shah for their conviction against acquittal. Therefore, both the appeals are disposed of by this single order.
2. The prosecution story as mentioned in the FIR is as under: Waris Hussain Shah complainant lodged a report on January 31, 1984 at 7-30 p.m. At Police Station Dudyal stating therein that Qasim Shah deceased arranged his marriage with Mst. Shahnaz Bi d/o Bashir Hussain Shah and his Nikah was also celebrated with her one month before. Abid Hussain Shah appellant wanted to get marry Mst. Shahnaz Bi with his brother Jaffar Hussain Shah but he could not succeed. Because of the reason Abid Hussain Shah, Raza Hussain Shah and Tariq Shah became enemies of Qasim Shah.
These persons hatched a conspiracy to kill his brother when he and Kabir Shah were coming on a motor-cycle after the close of the public meeting of President of Azad Jammu and Kashmir. His brother Syed Qasim Hussain Shah and Abdul Razzaq were going to their houses on the other motor-cycle via Dudyal. When they reached the downward road at Gala Bahari at 4:00 p.m., his brother Syed Qasim Hussain Shah and Abdu! Razzaq were going ahead and close to him, that Abid Hussain Shah, Raza Shah and Tariq Shah after blocking the road were standing armed with guns with the criminal intention to kill his brother. They raised a lalkara simultaneously and. Said, "Qasim Hussain Shah cannot escape his life today." While saying so the first found was fired from a single barrel 12 bore gun by Abid Hussain Shah at his brother Qasim Shah which hit both of his arms. His brother Qasim Hussain Shah and Abdul Razzaq got down from the motor-cycle and his brother Qasim Hussain Shah started running whereupon the second shot was fired by Raza Shah alias Pola Shah by the 12 bore single barrel loaded gun at his brother which hit his brother at his legs. The third fire was shot by Abid Shah once again by his loaded gun at his brother which also hit his legs.
His brother fell down. Tariq Shah who had a 12 bore Carbine in his had fired one shot. Abdul Razzaq, he and Kabir Hussain Shah raised an alarm whereupon Tariq Shah hit Abdul Razzaq at his right shoulder with the butt of the carbine and got hold of Abdul Razzaq. All of them raised a lalkara upon him and Kabir Shah. He and Kabir Shah fled away from the place of occurrence and saved their lives. The whole occurrence was caused by the blessings of Wazir Hussain Shah alias Baboo Shah. He has left his injured brother Syed Qasim Hussain Shah in the hospital Action may be taken on this report. On this report a case was registered under Sections 307/341/109 of Penal Code read with Sections 14/15 of AJK Islamic Penal Laws Act, 1974 (hereinafter to be referred as I.P.L.). Because of-the dangerous position of the injured he was sent to District Headquarter Hospital Mirpur but he succumbed to his injuries on the way to the hospital. At this the offence under Section 5 of I.P.L. Was added. After usual investigation a challan under Sections 307, 341, 109 and 34 of Penal Code read with 5/15 I.P.L. Was presented before District Criminal Court Mirpur on 28-2-1984. The statements of the accused under Section 242 of Cr.P.C, were recorded on 3-1-1985 but the accused denied their guilt. At trial the prosecution examined as many as 19 witnesses and the defence examined none.
The trial Court after recording the evidence and hearing the arguments of the learned counsel for the parties passed the impugned order on 24-3-1997, which has been challenged by the appellants through to separate appeals and is subject-matter of this judgment.
3. Muhammad Azam Khan, the learned Counsel for the appellants vehemently argued that the dying declaration Ex.P.J/3 is verbatim copy of First Information Report which cannot be relied upon.
He also argued that F.I.R, was lodged after delay of three hours and thirty minuets. He further submitted that it is a case of unseen occurrence and the independent witnesses were withheld while inimical witnesses were produced against the appellants. He maintained that no recovery was made at the spot and recovery memos, were also not prepared at the spot. According to him the site plan Ex.P.K/1 negates the occurrence. It was also argued by the learned counsel for the complainant that medico-legal report Ex.P.O and post-mortem report do not corroborate the prosecution story. He pointed out that the prosecution witnesses do not corroborate each other and major contradictor are present in the evidence which materially effect the prosecution case.
He further agitated that no dying declaration was recorded and the dying declaration Ex.PJ, is a forged one. He maintained that according to the prosecution story the place of occurrence has been stated the road which is not the actual place of occurrence. He finally submitted that cumulative effect of the oral as well as documentary evidence is that the prosecution story is not reliable and the trial Court recorded its judgment on surmises and conjunctures which cannot be up held. He also contended that Section 382-B of Cr.P.C, is a mandatory provision but the trial Court did not consider this fact and recorded the life imprisonment up to 25 years. However, the occurrence took place in the year 1984, when the life imprisonment was provided up to 14 years which was later on enhanced up to 25 years through an amendment of Section 55 of Azad Penal Code, 1860 on 12-6-1994, which could not be given retrospective effect. In support of his contentions the learned Counsel for the appellants referred the following case-law.
(i) P.L.D. 1953 Federal Court 223.
(ii) P.L.D. 1963 Supreme Court 17.
(iii) P.L.D. 1963 Supreme Court 40.
(iv) P.L.D. 1969 Supreme Court 599.
(v) 1969 P.Cr.L.J. 397.
(vi) P.L.D. 1970 Supreme Court 406.
(vii) 1972 P.Cr.L.J. 567.
(viii) D.L.D. 1973 Karachi 643.
(ix) P.L.D. 1984 AJK Shariat Court 2.
(x) 1986 P.S.C. 1326.
(xi) P.L.J. 1987 S.C. AJK 98.
(xii) P.L.D. 1990 Shariat Court AJK 3.
(xiii) P.L.J. 1993 Supreme Court 91.
(xiv) P.L.J. 1993 Supreme Court 367.
(xv) P.L.J. 1994 Supreme Court 130.
4. While replying the arguments of the learned Counsel for the appellants, Mr. Abdul Majeed Mallick, the learned Counsel tor the complainant strenuously contended that the prosecution has proved its case beyond any reasonable doubt. Besides the ocular evidence of Waris Hussain Shah (P.W.1) and Kabir Hussain Shah (P.W.2) the dying declaration "of Qasim Shah deceased also corroborates the prosecution version. He further argued that the prosecution has also produced medico-legal report, post-mortem report and recovery of to 12 bore guns, a carbine, crime empties, recovery of blood-stained clothes of the deceased and the blood-stained clay. He maintained that the evidence of the motive has also been produced. It was argued by the learned Counsel for the complainant that the relationship of the P.Ws, is admitted but they are not inimical with the accused. In this respect the defence did not suggest any enmity between the parties. He pointed that when the Nikah of complainant Waris Shah was celebrated with Mst. Shahnaz Bi then prosecution was not inimical with the appellants Abid Hussain Shah and others rather the accused were angry with the complainant and his brothers, he also submitted that the defence has admitted the presence of the accused and the P.Ws, on the spot He maintained that the prosecution witnesses were found Adil in purgation. While controverting the objections about dying declaration the learned Counsel for the complainant argued that the description of dying declaration is almost different from First Information Report and the witnesses of dying declaration Abdul Malik (P.W.4) and Raja Muhammad Asif (P.W.5) are neither related to the complainant nor inimical to the defence. He supported the recovery evidence and submitted that the place of occurrence is a public road. He frankly admitted that the prosecution could not establish an overt- act about Wazir Shah but the case of Tariq Shah-accused is almost different because he was presented on the scene of occurrence with a deadly weapon. He maintained that if the prosecution would have falsely implicated Tariq Shah then the proper person to be implicated was Jaffar Shah.
He argued that for the application of Section 34 A.P.C. The infliction of an injury is not necessary rather the accused making an abetment is equally liable for the occurrence. He criticized the impugned judgment to the extent that when to trial Court relied upon the prosecution evidence as true then instead of life imprisonment the sentence of Qisas or death would have been pronounced. According to him no mitigating circumstances were shown by the Trial Court for not pronouncing the death sentence. Finally, he submitted that the appeal may be accepted and sentence of life imprisonment awarded to respondents 1 and 2, be enhanced to the sentence of Qisas and the order of acquittal of respondent No. 3 be set aside and he also may be convicted on the charge of murder and ordinary sentence of Qisas/death may also be awarded to him. In support of his arguments he relied upon the following authorities:-
(i) 1974 P.Cr.L.J. 543.
(ii) 1981 P.Cr.L.J. 199.
(iii) 1983 P.Cr.L.J. 898.
(iv) PLD 1983 S.C. 27.
(v) PLD 1984 S.C. AJK 20.
(vi) 1984 P.Cr.L.J, 1071.
(vii) PLD 1993 S.C. 895.
5. Mr. Muhammad Mushtaq Ch., the learned Additional Advocate General owned and supported the arguments of the leaped Counsel for the complainant. He further submitted that a young man has been brutally murdered and prosecution has proved its case beyond reasonable doubt, therefore, the sentence of Qisas/death may be awarded to the appellants Abid Hussain Shah and others.
6. I have given my due considerations to the above contentions of the learned Counsel for the parties in the light of the tacts and circumstances of the case and the law applicable to it. The prosecution has produced four types of evidence to prove its case: -
(i) Ocular evidence.
(ii) Dying declaration of the deceased.
(iii) Medical evidence.
(iv) Motive and other confirmatory evidence.
First of all we would like to deal with the ocular evidence. In this respect, the prosecution produced Waris Hussain Shah (P.W.1), who deposed that he, Qasim Shah (deceased) Kabir Hussain Shah (P.W.2), and Abdur Razzaq (P.W.3) were coming from Dudyal alter participating a public meeting of President of AJ&K and when they reached Gala-Baharai at about 4:00 or 4:30 p.m. He saw Abid Hussain Shah, Raza Hussain Shah and Tariq Shah accused, at the left bank of the road, who were armed with deadly weapons. All of them raised a Lalkara and stopped the motor-cycle of Qasim Shah. Meanwhile, Abid Shah fired a shot with his gun which hit upon both the arms of Qasim Shah who started running away. At this Abid Shah and Raza Shah chased him and when they reached near Qasim Shah, Raza Shah fired a shot which hit upon both the legs of Qasim Shah and after that Abid Shah fired another shot which also hit upon both the legs of Qasim Shah, resultantly, Qasim Shah fell down.
7. Kabir Hussain Shah (P.W.2) also corroborated the statement of Waris Hussain Shah (P.W.1) and deposed that after participating the public meeting of President of AJ&K, he with Qasim Shah (deceased), Waris Shah (P.W.1) and Abdul Razzaq (P.W.3) were coming back' to village. Daggar on Motor-cycles. The deceased was driving the motor-cycle himself which was stopped by Abid Shah in Gala-Bahari at about 4:00 or 4:30 p.m. All the accused were armed with 12 bore guns and Carbine, who raised a Lalkara. At this, Abid Shah fired a shot which hit upon both the arms of Qasim Shah who left the motor-cycle and tried to runaway towards Bahari but Raza Hussain Shah and Abid Hussain Shah chased him and when they reached near by Qasim Shah, Raza Shah also fired a shot upon the deceased which hit upon his legs and Abid Shah again fired another shot which hit the legs of Qasim Shah who fell down.
8. The learned Counsel for the appellants-accused Abid Hussain Shah and Raza Shah, contended that independent witnesses were withheld and both the interested witnesses namely Waris Hussain Shah (P.W.1) and Kabir Hussain Shah (P.W.2) were produced but the learned counsel for the complainant while controverting the argument submitted that the relationship of the deceased with prosecution witnesses is admitted but they are not inimical with the prosecution. It is on the record that Waris Hussain Shah (P.W.1) is real brother of Qasim Shah deceased and Kabir Hussain Shah (P.W.2) is real cousin of the deceased, but defence failed to prove any enmity of the prosecution witnesses with the accused. It is quite evident from the evidence that after Nikah ceremony of Waris Hussain Shah (P.W. 1) and Mst. Shahnaz Bi (P.W.7) no enmity remained between the prosecution and the appellants-accused, rather appellants became angry and inimical towards Qasim Hussain Shah (deceased) and Waris Hussain Shah (P.W.1), because Abid Hussain Shah failed to get married his real brother Jaffar Hussain Shah with Mst. Shahnaz Bi. Thus, no interest or enmity is present on the record to falsely implicate the appellants-accused in the case or to substitute anyone else except the real culprits. Therefore, the evidence of eye-witnesses is reliable and could not be brushed-away of being related to the deceased. The general principle cannot be applied to the truthfulness of the witnesses that if a witness is not interested or inimical he will speak truth and the Courts will always rely upon him. Similarly, if a witness is related to the deceased or inimical with the accused he cannot be taken as a liar. Therefore, the real yardstick is a deposition of the witness which he deposes before the Court, if a witness is a natural one and his presence is proved he can be relied upon even though he is closely related to the prosecution or inimical to the accused. The changing factors of the society cannot be ignored when the independent witnesses do not come forward to depose against the accused.
Therefore, mere relationship of prosecution witnesses and absence of independent witnesses cannot lead to an inference that they are not witnesses of truth. The degree of enmity is by itself a very important factor as to whether a witness be relied upon or not. It is a question of fact which can be determined from case to case. In this respect, reference can be made to Behrman v. The State (1974 P.Cr.L.J. 543 AJ&K) wherein their lordship enunciated the following principle:- "--Credibility in witness-box-Primary yardstick for determining reliability or unreliability of a witness-Witness's being interested in sense of being related to victim or inimical in sense of her husband or brother being not on good terms with accused-Does not necessarily made witness liar.
Just as a witness's not being interested or inimical, does not necessarily mean that he was a witness of truth making it incumbent upon the Court to rely upon him, similarly his being interested in the sense that he happens to be a relation of the victim or inimical in the sense that her husband or brother was not on good terms with the accused, should not necessarily lead to the inference that she or he must not be speaking the truth. The golden rule is that credibility in the witness-box is the primary yardstick for determining the reliability or un-reliability of a witness."
9. The similar view was approved by the Supreme Court of Azad Jammu and Kashmir dealing with case of Muhammad Malik v. The State (1981 P.Cr.L.J. 199 S.C. AJK) which reads as under:-- 'S. 302--Murder--Ocular evidence-Corroboration-Mere relationship of eye-witnesses with deceased and their animosity with accused-Held, not sufficient to discredit them if their evidence otherwise inspires confidence-Corroboration generally insisted upon for satisfaction of Court when certain infirmities crop up in statements of relative and inimical witnesses-Statements of eye- witnesses found to be free from infirmities and supported by medical evidence, recovery of crime empties and abscondence of accused immediately after occurrence- Held, such evidence does not need further corroboration-Conviction and death sentence awarded by trial Court and maintained by High Court upheld."
10. A perusal of the above-stated authorities make it crystal clear that mere relationship pf the P.Ws, with the complainant or a deceased do not disentitle them to be a witness of truth. In this respect, the learned Counsel for the appellants-accused has also relied upon P.L.D. 1963 S.C.
40. In this case, all the three witnesses and deceased were closely related and also inimical to the accused. The deceased, Thiraj, was a man of thoroughly bad character who had been prosecuted for murder, was convicted in a dacoity case and had been a suspect in a number of other murder cases thus, possibility of his having been killed at night by some unknown enemies could not be ruled out. In another case Sikandar v. The State (P.L.D. 1963 S.C. 17), natural witnesses were not produced by the prosecution and chance witnesses who were having background of enmity with accused, were produced. One of the witnesses also made a false denial of relationship. Therefore, the evidence of such witnesses was not relied upon. In case of Abdul Hakeem v. The State (P.L.D.
1990 Sh. C. AJ&K 3), the evidence was not relied upon because despite of close relation long-drawn enmity admittedly existed, who were engaged in civil and criminal litigations and ocular evidence was contradicted by very important confirmatory evidence.
11. The learned Counsel for the appellants pointed out some discrepancies in the testimony of eye- witnesses, but these discrepancies are of very minor type and do not effect the main case of the prosecution. The learned Counsel for the appellants submitted that Waris Shah (P.W. 1) stated in the F.I.R, that Tariq Shah respondent-accused aimed upon him with a Carbine, but before the Court, he deposed that Tariq Shah shot a fire upon him with the Carbine. I can't agree with this contention, because F.I.R, discloses that it was stated by complainant that Tariq Shah shot a file with Carbine. The difference between the assertions in F.I.R, and the testimony of Waris Shah is up to this extent that Waris Shah (P.W.1) did not state this fact in F.I.R, 4s to whether Tariq Shah fired upon him with Carbine, but in his statement before the Court he deposed that Tariq Shah fired upon him which did not hit him. This type of a minor discrepancy that Waris Hussain Shah (P.W.1) failed to state in F.I.R, that Tariq Shah fired upon him does not make Waris Shah an unreliable witness. It is admitted principle of law that the correct legal position would be to accept the correct part of the evidence and reject the incorrect. In this respect, reference can be made to Abdul Khalique v. The State (1983 P.Cr.L.J. 898) (S.C. AJ&K) wherein it was held as under:- "S. 302-Murder--Evidence--Witness-First informant and one witness shifting their stand from one disclosed in F.I.R.-Statements as a whole to be carefully appraised in such situation, and after shifting evidence, correct part of same to be accepted and incorrect part rejected-Whole statements cannot thrown away just because they are found to be incorrect on one or some points-Court, in such a situation, should be at its guard and examine evidence with utmost care and caution."
12. Similar view was explained by the learned Judges in Muhammad Hanif v. The State (P.L.D. 1993 S.C. 895), which reads as under:- S. 302/34--Appreciation of evidence--Evidence should not be considered in isolation but whole of it should be taken into consideration-Guilt of accused has to be determined on the totality of legal evidence on record."
Our this view also gets support from a case reported as Misri v. The State (1998 SCR 337).
13. The learned Counsel for the appellants also challenged the statement of Waris Hussain Shah (P.W. 1) at this score that if the real brother of Waris Hussain Shah (P.W.1) was injured and he was present at the spot with a motor-cycle then why he did not leave for town to hire a vehicle and why he did not carry his brother on motor-cycle and his mere presence. On the spot without any struggle to save the life of his brother proves that he was not present at the spot. According to our view, this argument cannot be accepted because it has been proved on the record that both the arms and legs of the deceased were broken by three fires which were made from a very close range. Therefore, it was impossible for the complainant to carry his injured brother on the motor- cycle and according to the facts and circumstances of the case, it was not possible for him to leave his injured brother over there. Thus, as soon as he came down from the hill, reached on the spot and after some tine found a wagon and he took his brother straightaway to the hospital.
14. The learned Counsel for the appellants has also criticized the testimony of Kabir Shah (P.W.2) while inviting our attention towards this statement of the witness where he deposed that Qasim Shah deceased died in Dudyal Hospital. This may be a slip of tongue because it has been amply explained. In cross-examination on page 97 of the trial Court file that Qasim Shall deceased was taken to D.H.Q. Mirpur when doctor told them that Qasim Shah has died. Thus, this argument of the learned Counsel for the appellants has no substance.
15. The learned Counsel for the appellants further pointed out that Kabir Hussain Shah (P.W.2) stated before Court that after half-an-hour of the occurrence he with Waris Hussain Shah (P.W.1) came down from the hills and when they reached near Qasim Shah, after 10 to 15 minutes a Wagon came over there. But according to the statement of Waris Hussain Shah (P.W.1) Muhammad Hussain reached at the spot after one and half or to hours. The close perusal of both the statements of above-mentioned P.Ws, make it very much clear that there is no contradiction on this point and Waris Shah (P.W.1) has categorically testified at the back page of the page 87 of the trial Court file that after one and half or to hours of the "occurrence" Muhammad Hussain reached at the spot with his wagon. Thus, Kabir Hussain Shah (P.W.2) speaks about the time when they came down from the hills and reached at the scene of occurrence. He also stated in clear words that wagon reached on the spot at about 5:30 p.m. Thus, the difference of some minutes in calculation of time between P.Ws, cannot be described as a material contradiction, especially when the witnesses were also found Adil in Tazkia.
16. It will not be out of place to mention here that if the minor discrepancies are found in the statements of the P.Ws, these speak of their truthfulness and also proves that they were not tutored to speak parrot's like.
17. At this stage, it will also be appropriate to state that F.I.R, was promptly lodged and no such delay which is fatal to the prosecution case could be established, rhe occurrence took-place at 4:00 p.m. And F.I.R, was lodged at 7:30 p.m. The place of occurrence is situated at a distance of four and half miles from the Police Station. It has been proved on the record that after firing shots upon the deceased the accused also raised Lalkara upon the complainant and P.Ws, and one of the accused Tariq Shah threatened them and kept the P.Ws, at by at Carbine pointed. Therefore, at that time the fleeing away of the P.Ws, from the scene of occurrence and after some time coming back at the spot is quite natural. The P.Ws, have also deposed that the deceased was severely injured. Thus, it was impossible for the complainant and Kabir Hussain Shah (P.W.2) to take away the deceased on a motor-cycle. It was but natural that as soon as they found a wagon, they took away the deceased straightaway to the hospital. After that the complainant went to bazar and managed to prepare with F.I.R, which was written by Abdul Jabbar in a hotel and then it was lodged at Police Station. All these facts and circumstances coupled with the injuries of the deceased when weighed, it appears to a prudent mind that F.I.R, was promptly lodged without any delay which could make the prosecution case doubtful. Even otherwise delay per se is no ground for throwing out of case of the prosecution, (1996 S-.C.R. 336).
18. The prosecution case is also supported by the evidence of dying declaration Exh.PJ. The learned Counsel for the appellants strenuously contended that dying declaration cannot be relied upon because it is a verbatim copy of F.I.R, and was not stated by the deceased. This argument is not available to the learned Counsel for the appellants because the perusal of dying declaration Exh.PJ, solves the controversy. When F.I.R. Exh. P.A, is compared with dying declaration Exh.PJ, it is found that in F.I.R, the details of firing are mentioned but in the dying declaration the details of firing by appellants are missing and it has been stated by the deceased that when he left his motor- cycle over there and tried to runaway, the appellants shot to fires upon him from back side which hit upon his legs. F.I.R, does not disclose the number of motor-cycle which was driven by deceased, but in dying declaration Exh.PJ, deceased also stated the number of motor-cycle. The fact of attacking Abdul Razzaq (P.W.3) with butt of Carbine by Tariq Shah was also not deposed by Qasim Shah (deceased) in his dying declaration Exh.PJ, as it was alleged in F.I.R. Exh. P.A by the complainant. Therefore, it cannot be held that dying declaration is a verbatim copy of F.I.R, which cannot be relied upon and was prepared after the death of the deceased. Moreover, it has been testified by independent witnesses Abdul Malik (P.W.4) and Raja Muhammad Asif (P.W.5). The learned Counsel failed to point out any contradiction in the statements of both the witnesses in this respect. The dying declaration Exh.PJ, was recorded by Ibrar Haider Sub-Inspector Police (P.W.26) which also lends support from the deposition of doctor Muhammad Bashir (P.W.17), who categorically stated that dying declaration was recorded by Ibrar Haider Shah, Sub-Inspector Police (P.W.26) after consulting him, who issued a certificate Exh. P.A, for the purpose that "injured is able to get his statement recorded." I don't find any reason to disbelieve the statement Exh.PJ, deposed at the time when the deceased knew that he was leaving this world, he certainly had no motive to falsely implicate any innocent person because at that time his mind was induced by the most powerful consideration to speak truth. Because of the reason, this situation is considered very solemn by the law and always relied upon unless some illegality is proved. Even conviction can be based solely on dying declaration without any independent corroboration in a murder case. But before relying upon a dying declaration it has to be kept in mind that it should ring true and there should not be a chance of mistake on toe part of dying man in identifying the assailants and it should also be free from prompting from outside and it should not be inconsistent with other evidence of the case. The dying declaration Exh.PJ, intrinsically rings true and genuine which was given under the sense of impending death. As such the omissions of the Investigating Officer to obtain the doctor's attestation thereon does not cast any adverse reflection on the veracity of the dying declaration (P.L.D. 1993 S.C.-27), especially when Dr. Muhammad Bashir (P.W.17) corroborates this fact in his statement before the Court that "at the time of the recording of the dying declaration by the Police he was present."
19. Article 46 of the Qanun-e-Shahadat Order, 1984 is an exception to the general rule that all oral evidence must be direct because when a person states a fact before a Court of Law he speaks under the sanction of an oath and he can be cross- examined by the other party, but in the case of statement deposed under Article 46 mentioned above these types of safeguards are not available because the maker of the statement cannot be examined. But the nature of statement and the circumstances under which it is made, make probably the truth of statement and thus, take the place of oath and cross-examination. Therefore, the evidence of dying declaration cannot be lightly ignored. The learned Counsel for the appellants- accused referred to cases in support of his contentions Liaqat Hussain v. Abdul Majeed and others, Muhammad Reaz and another v. The State (1986 P.S.C. 1326) and Muhammad Latif and another v. Muhammad Hussain and nine others (PLD 1970 S.C. 406), but both the cases referred above render no help to the appellants because of the distinguishable facts. In first case dying declaration had minute details of such a type that the deponents could not have had knowledge of some of the facts stated therein. It was also not recorded in accordance with law, therefore, not relied upon by the apex Court of Pakistan. In second case at the time of the recording of the dying declaration all the eye-witnesses were present, therefore, it was not considered, but in instant case as stated above, the dying declaration was recorded in accordance with law in presence of independent prosecution witnesses and in absence of the eye-witnesses which has no minute details but is of a general type of statement.
Therefore, it does not need any more corroboration and dying declaration Ex.PJ, alone is sufficient to record conviction as reported in Misri v. The State (1998 SCR 337).
20. The learned Counsel for the appellants-accused also submitted that according to the statement of Dr. Muhammad Bashir (P.W.17) the accused fired upon the victim from the right side but according to the prosecution story and the site-plan the accused had fired shots from the left side of the deceased when deceased accompanying with other prosecution witnesses was proceeding towards Bhari. While replying this argument, the learned Counsel for the complainant took us through the statement of the Dr. Muhammad Bashir (P.W.17), whereby he deposed in cross- examination that entry wound of injury No. 1 is 6 inches and exit wound is of 4 inches. Furthermore, entry wound is 4 inches of injury No. 2 and exit wound is of 3 inches, thus, inadvertently Dr. P.W.
Declared the entry wound as exit wound. For this reason the direction of firing has been changed, because entry wound is always lesser in size as compared to the exit wound.
21. I very much agree with this contention of the learned Counsel for the complainant that Dr. Muhammad Bashir (P.W. 17) inadvertently declared the entry wound as exit. Thus, a change of direction took-place in his examination. Furthermore, the injuries No. 1 and 2 were inflicted upon the deceased when he was running away after getting hit by first tire which has been shown as injury No.3. In this state of affairs, while victim was running away and the assailants were chasing him a bullet could be fired from either direction. A perusal of the statement of the doctor reveals that he has fully supported the other aspect of the prosecution story and deposed that the injury No. 3 was inflicted from the left side when for the first time the accused stopped the deceased and shot first fire on both the arms of the deceased. He also corroborated this aspect of the prosecution version that both the legs of the deceased were hit by fire-arms and the death occurred because of these severe injuries. It will be appropriate to mention here that the medical evidence is type of a' confirmatory evidence and when ocular evidence is reliable, medical evidence losses its value and it cannot outweigh the ocular version. In this respect, reference can be made to Muhammad Hanif v. The State (P.L.D. 1993 S.C. 895(d) where the following principle was enunciated:- S. 302/34-Qanun-e-Shahadat (10 of 1984), Art. 59-Expert's evidence-Medical evidence-Evidentiary value, in presence of direct evidence-Expert's evidence may it be, medical or that of a Ballistic Expert, is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence-If there is direct evidence which is definite, trustworthy, the confirmatory evidence is not of much significance and cannot in any case, outweigh the direct evidence."
22. In these circumstances the medical evidence also corroborates the prosecution story. The prosecution has alleged motive of murder in F.I.R. Exh. P.A, which was also proved through its evidence. In this respect, Waris Hussain Shah (P.W.1) and Kabir Hussain Shah (P.W.2) have clearly deposed in their statements that Abid Hussain Shah accused wanted to get married Mst. Shahnaz (P.W.7) with his brother Jaffar Hussain Shah and when he could not achieve this object and Nikah of Waris Hussain Shah (P.W. 1) was solemnized with Mst. Shahnaz Bi (P.W.7), he became inimical towards Qasim Hussain Shah, deceased, who managed the Nikah ceremony between Waris Hussain Shah and Mst. Shahnaz Bi (P.W.7). The defence miserably failed to deny this fact established by the prosecution. It was also proved by the prosecution that on the day of Nikah ceremony Abid Hussain Shah appellant-accused made a report at Police Station Dudyal to stop the Nikah ceremony but the matter was later on compromised. But however, the accused did not forget their insult. In this respect, Muhammad Fazal (P.W.6) deposed that at 9-1-1984 Abid Shah accused called him and told him that he will commit the murder of Qasim Hussain Shah and he should tell him this fact but the witness refused to convey the message. Allahdad (P.W.9) proved this fact that on 8-1-1984 in his presence Nikah ceremony between Waris Hussain Shah (P.W.1) and Mst. Shahnaz Bi (P.W.7) was solemnized, while Chaudhry Muhammad Fazal was also present. He further stated that on the day o Nikah ceremony Police also went there. Basheer Shah (P.W.8) stated that Abid Shah% accused asked him to marry his daughter Mst. Shahnaz Bi (P.W.7) with his brother Jaffer Shah, but he refused to do so and solemnized the Nikah between Waris Hussain Shah (P.W.1) and Mst. Shahnaz (P.W.7). At this, Abid Hussain Shah and Wazir Shah accused threatened him that if he got married his girl with brother of Qasim Shah he will kill both of them, Qasim Shah and Waris Shah. Mst. Shahnaz Bi (P.W.7) also stated that she was married with Waris Shah but accused Abid Shah also wanted to solemnize her marriage with his brother Jaffar Shah, but her Nikah was solemnized with Waris Shah. After the second day of Nikah the accused Wazir Shah and Abid Shah threatened her father and told him that they will kill him and Waris Shah. Ghulam Risalat (P.W.14) also stated that on 9-1-1984 Mst. Fazal Bi mother of Abid Shah accused abused and threatened him that why he has managed the marriage of Mst. Shahnaz Bi with Waris Shah. On this he presented an application Exh. P.Y. At Police Station on 10.1.1984 but the matter was compromised.
The prosecution has also brought on record report ' Roznamcha' dated 28-1-1984 Exh. P.A. (11), an application Exh. P.Y. Dated 8-1-1984 presented by Abid Shah accused against Qasim Shah, deceased, wherein it was stated that Qasim Shah was creating hurdle in marriage ceremony of Jaffar Shah with Mst. Shahnaz Bi (P.W.7) but the matter was compromised through document Exh.
P.Q. All the above-mentioned ocular and documentary evidence proves the fact that the accused became inimical towards deceased and complainant because of the marriage relationship between Mst. Shahnaz (P.W.7) and Waris Hussain Shah (P.W.1). It is admitted principle of law that motive is not a sine qua non proving an offence of murder. If the prosecution alleges motive and fails to prove it, it does not damage its case, if otherwise commission of murder is proved by other evidence. In this respect, reference can be made to a case reported as Usman Khalid v.
Muhammad Younas and another (1996 S.C.R 197), wherein the following principle was laid down:- S. 5 read with S. 24-Motive-Murder-It is not necessary to prove the motive for murder in all cases, especially so when no motive was initially attributed to the accused-Even otherwise if the charge against an accused person is satisfactorily proved by other evidence, failure to prove alleged motive is not fatal to prosecution case."
23. The perusal of the afore-mentioned authority reveals that if the motive is not proved and even otherwise the offence against an accused person is proved by the evidence, he can be convicted in absence of the motive, but in the instant case alleged motive has been amply proved, as mentioned above.
24. The learned Counsel for the appellants-accused has also objected that the trial Court has erroneously relied upon the recovery evidence. In this respect, he referred the site-plan Exh. P.K/I and developed this argument that the site-plan was prepared on 2-21984, therefore, the alleged recoveries were not made on 1-2-1984. Furthermore, the recovery witnesses are closely related and do not belong to the locality. We have gone through the record with utmost care and come to the conclusion that prosecution has produced convincing evidence to prove the recoveries. As far as the first objection of the learned Counsel for the appellants- accused is concerned, it shall be sufficient to note that the recovery witnesses Abdul Malik (P.W.4) and Raja Muhammad Asif (P.W.5) clarified the position while stating that at the time of the recovery, Investigating Agency also prepared the site- plan, if the Investigating Agency failed to annex the said site-plan with the file, the prosecution cannot be punished. The recovery witnesses are neither related to the prosecution nor inimical with the accused. The fact of recoveries has been proved in the light of the statements of P.Ws. Abdul Malik (P.W.4) deposed about the recovery of crime empties Exh. P.7, Exh. P.8 and Exh.
P.9. He also stated about the recovery of blood-stained clay and small stones from the place of occurrence through recovery memo. Exh. P.I which was marked as Exh. P.
10. He further testified the recovery of broken back view mirrors and broken handles etc. With the motor-cycle No. AJKB/7511 Exh. P.1! And P.12 vide recovery memo. Exh. P.M. Raja Muhammad Asif (P.W.5) and Ibrar Haider, Sub- Inspector Police (P.W.26) also corroborated the above-mentioned recoveries. The recovery of 12 bore gun Exh. P.M from Abid Hussain Shah accused was made on 19-2-1984 through recovery memo. Exh. P.O, which has been proved by the statements of Raja Muhammad Asif (P.W.5) and Ibrar Haider, Sub-Inspector Police (P.W.26). If for the sake of arguments the statement of Basharat Khan (P.W. 11) is not relied upon because of his relationship with the deceased, it will be relevant to mention this fact that he was not cross-examined on the point of said recovery by the defence.
Furthermore, a 12 bore gun Exh. P. 15 was also recovered from Raza Shah accused vide recovery memo. Exh. P.P, on 26-2-1984 in presence of Muhammad Ayub (P.W.9) and Muhammad Fazal (P.W.
13). No doubt that Muhammad Fazal (P.W.6) is real brother of Muhammad Malik (P.W.4), but is has not been proved on the record as to whether these P.Ws, are interested with prosecution or inimical with the defence. Ibrar Haider, Sub-Inspector Police (P.W.26) has also witnessed the said recovery.
Therefore, we find no reason not to accept the said evidence. The Ballistic Expert has also testified that the crime empties Exh. P.7, Exh. P.8 and I Exh. P.9 were fired by recovered guns Exh. P.M and Exh.
P.
15. It will also be appropriate to mention here that the trial Court has inadvertently marked an empty of Carbine as Exh. P.M recovered by Tariq Shah-accused as well as 12 bore gun recovered by Abid Shah accused was also marked as Exh. P.M, therefore, while correcting the number of article the 12 bore gun recovered by Abid Shah accused is marked as Exh. P. 14/1, during the course of this judgment. Beside the recovery of crime empties and the gups used by the appellants-accused during the occurrence, the blood-stained clay with small stones and the broken back view mirrors, handles etc. Of motor-cycle and other broken pieces with the broken motor-cycle were also produced by the prosecution as other confirmatory evidence in support of its case. The recovery memo. Exh. P.B, of the deceased clothing, shirt Exh. P.I, Shalwar Exh. P.2, sweater Exh. P.3, a packet of Cigarette Exh. P.4, currency notes Exh. P.5, Exh. P.6, the site-plan Exh. P.K, report of Serologist Exh.
P.EE/5, report of chemical examiner Exh. P.EE/6, injury form of Qasim Shah (deceased) Exh. P.O, inquest report Exh. P.A/6 were also produced and proved by P.Ws. It was also found through certificate Exh. P.Z/4 that Abid Hussain Shah accused was having a licence for his gun. In connection with site-plan, it was also submitted by the learned Counsel tor the appellants- accused that tiring from point No. 2 to point No. 1, cannot be relied upon because of the distinct distance stated by the P.Ws, in this respect, we have minutely gone through the statements of the eye-witnesses especially the part of cross-examination and suggestions put by the defence which abundantly made it clear that through these suggestions the defence has itself admitted the presence of the accused as well as of the P.Ws, at the scene of occurrence, in this view of the matter, when the presence of the accused as well as of the P.Ws, has been proved beyond any reasonable doubt the minor infirmities in the statements of the P.Ws, in respect of the description of the distance in the light (of the peculiar facts and circumstances of the case when the victim was stopped, fired upon and was chased by the assailants and again hit upon, not specifically matter because during such type of occurrence the P.Ws, may make some mistake while describing distance of firing etc. Therefore, such minor infirmities in the statements of the eye-witnesses regarding the distance from where the shots were fired do not make their statements doubtful, it will not be out of place to mention here that illiterate witnesses cannot describe the distance in a mathematical manner and when the prosecution version inspires confidence such minor discrepancies would not matter at all. In this respect, a reference can be made to a case reported as The State v. Muhammad Akram, Mst. Naseem Akhtar v. Muhammad Akram and three others and Muhammad Arif and three others v. The State (P.L.J. 1988 S.C. AJ&K 36), whereby it was observed as under:- "-Murder case-Evidence-Appreciation of-Discrepancies-Effect of- in case of illiterate persons, mathematical precision is not possible in case of distance-Held: If eye-witnesses account of material particulars of prosecution story inspires confidence, mere discrepancies regarding relevant distance do not make their evidence doubtful."
25. As far as the next objection to the learned Counsel for the appellants- accused is concerned, that witnesses do not belong to locality, therefore, the recovery of the articles is doubtful, it will be suffice to say that recovery of weapons of offence at the instance of the accused persons is not strictly governed by the provisions contained in Section 103, Cr.P.C. The said provision pertains to search by a Police Officer under Chapter VII of Criminal Procedure Code and not to the accused where a weapon of offence is produced or recovered by the police at the instance of the accused persons. The following observation was made in a case reported as Abrar Hussain Shah v. The State (P.L.D. 1992 S.C. AJ&K 20):- S. 103-Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.3/24-Recovery of weapon of offence at the instance of accused person is not strictly governed by the provisions contained in S.103, Cr.P.C.-Said provision pertains to search by a Police Officer under Chap. VII of Criminal Procedure Code and not to the case where a weapon is produced or recovered by the Police at the instance of an accused person."
26. It will not be out of place to mention here that the record proves this fact that the place of occurrence and surrounding areas were not inhabitated. Therefore, it was not possible for Investigating Officer to call respectables of locality on spot at the time of recovery of guns. The police could not arrange the independent persons from locality before seizing the guns. Thus, the fact of recovery stands proved in the light of the facts and law enlisted above.
27. After careful scrutiny of the evidence on the record, it appears that F.I.R, was promptly lodged the appellants were clearly nominated and a specific role was attributed to them which has been proved by the testimony of eyewitnesses. No doubt both the eye-witnesses of the occurrence are closely related to each other and the deceased, but they are im no way inimical to the appellants- accused and their depositions are not only consistent and truth-worthy but also inspires the confidence. The ocular version has been corroborated by medical evidence, motive and other confirmatory evidence described above. Both the appellants-accused committed the murder of Qasim Hussain Shah, deceased, by gun shot tires on the arms and legs of the deceased who died because of the above- mentioned injuries. The non-appearance of Abdul Razzaq (P.W.3) and Muhammad Hussain (P.W.) does not cast doubt on the prosecution story especially when it has been proved by ocular evidence. Furthermore, the defence itself admitted the presence of the accused as well as P.Ws, at the place of occurrence. Thus, we are of the view that the trial Court has advanced cogent reasons in favour of their conclusion and verdict.
28. As far as the case of Tariq Shah-accused is concerned, it stands on different footings. The accused neither tired upon the deceased nor on P.Ws, it was alleged by the prosecution that he hit upon the right shoulder of Abdul Razzaq (P.W.3), but Abdul Razzaq did not appear before the Court to confirm this fact. An injury form Exh. P.0/2 was prepared, but it was not put and proved by Dr. M.
Bashir (P.W.17). Thus, according to the facts and circumstances mentioned above, we do not agree with this argument of the learned Counsel for the complainant that the accused Tariq may also be sentenced. The learned Counsel for the complainant has frankly conceded his appeal to the extent of Wazir Hussain Shah-respondent that his abetment to the commission of crime could not be established by the prosecution. Therefore, the appeal tiled by Waris Shah has no merits to the extent of Tariq Shah and Wazir Shah respondents-accused.
29. The learned Counsel for the appellants-accused vehemently argued that the occurrence took- place in the year 1984, when life imprisonment was fixed for a term not exceeding 14 years under Section 55 of Penal Code. But the trial Court has awarded life imprisonment upto 25 years which is against the statutory provision of law. He also argued that the punishment or sentence cannot be given retrospective effect in the light of the amendment made in year 1994 for an offence allegedly committed in year 1984. We very much agree with this contention of the leaned Counsel tor the appellants-accused that on 31-1-1984, the Section 55, P.C. Was not amended and according to the Section 55. P.C. In every case in which sentence of imprisonment of life was passed, it was to be commuted tor a term not exceeding 14 years. The Section 55 of Azad Penal Code was amended through Azad Penal Code (Amendment) Act, 1994, whereby the sentence of life imprisonment was enhanced up to 25 years. Therefore, the trial Court misinterpreted and misconstrued the amended law and gave the retrospective effect to a statutory provision which was not applicable to the instant case. It is golden principle of law that the right of the parties cannot be effected by the later enactment unless it is expressly made retrospectively. The Azad Jammu and Kashmir Interim Constitution Act, 1974 also gives protection against the retrospective punishment. Section 4 sub- section 4(4) of the Constitution Act is relevant which reads as follows.
4. Protection against retrospective punishment- No law shall authorise the punishment of a person-
(a) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
30. The above-noted section resolves the controversy and it is held that the trial Court was misled under the impression that the Court was empowered to pass the life imprisonment up to 25 years instead of 14 years. Thus, the impugned order cannot be sustained up to this extent and the sentence of life imprisonment has to be construed and commuted for a term not existing 14 years.
31. It was also contended by the learned Counsel for the complainant that when the trial Court relied upon the prosecution evidence then without stating mitigating circumstances the sentence of life imprisonment was awarded instead of the death sentence. We have made the detailed scrutiny of the record of the case and the evidence produced by the prosecution and arrived at the conclusion that the verdict of the trial Court is based on cogent reasons which does not call for an interference by this Court. It will be appropriate to note here that Abdul Razziq (P.W.3) who was an independent eye-witness was not produced in the Court and withheld by the prosecution.
Furthermore Muhammad Hussain P.W. Was also not produced by the prosecution, the person who took away the deceased and the P.Ws, to the hospital in his wagon. Keeping in view the peculiar facts and circumstances of the case we do not feel it proper to impose the extreme penalty of death and the sentence of life imprisonment will meet the ends of justice.
32. It was also maintained by the learned Counsel for the appellants- accused that Section 382-B of Cr.P.C, is a mandatory provision of law but the trial Court did not consider the same while passing the impugned order. In reply, the learned Counsel for the appellants, contended that the benefit of Section 382-B of Cr.P.C, cannot be extended to an accused as a right but in this respect the discretion vests with the Court. I very much agree with this contention of the learned Counsel for the complainant that the Court is not bound to grant benefit of Section 382-B, Cr.P.C, in a mechanical manner or as a matter of routine but the Court has to take into consideration this aspect of the sentence in the light of the peculiar facts and attending circumstances of each case while passing an order of imprisonment. The matter of bestowing the benefit under Section 382-B of Cr.P.C, vests in the judicial discretion of the Court and cannot be claimed as right. The burden lies upon an accused or convict to satisfy the Court that he is entitled for the benefit of Section 382-B, Cr.P.C. According to the detail analysis of the evidence in the earlier part of this judgment, Qasim Shah, deceased, was brutally murdered by appellants-accused without any provocation.
The accused had no justification for acting sb savagely because Bashir Shah (P.W.8) refused to marry his daughter Mst. Shahnaz Bi (P.W.7) with Jaffar Shah, the brother of Abid Hussain Shah appellant accused and he solemnized a nikah of Shahnaz Bi with Waris Hussain Shah (P.W. 1) brother of the deceased. In this view of the matter we are not inclined to allow benefit of Section 382-B, Cr.P.C., to the appellants.
33. The upshot of the above discussion is that we dismiss the appeal filed by Waris Hussain Shah and partly accept the appeal Filed by Abid Hussain Shah and another and modify the order of sentence passed by District Criminal Court Mirpur, to the extent that the appellants Abid Hussain Shah and Raza Hussain Shah shall be sentenced to imprisonment for life, for a term not exceeding 14 years. It is further directed that appellants Abid Hussain Shah and Raza Hussain Shah, accused- convicts, shall not be entitled to the benefit of Section 382-B of the Cr.P.C.