1FT1KHAR HUSSAIN BUTT, J.~ The appeal has arisen out of the order of acquittal passed by District Criminal Court Kotli, on 13-6-1997, whereby the respondents were acquitted of the offences allegedly committed by them under sections 5 I.P.L and 15 read with sections 341/147, 148 & 149 A.P.C.
2. The brief facts of the prosecution case are that Mehboob Khan alias Maroof, complainant, (P.W. 1) made, a written report to the Officer Incharge Police Post Nar, on 8th of March, 1992 at 1:30 p.m., wherein it was alleged that on day of the incident, the. Complainant accompanied by Muhammad Yousuf, zahid Hussain deceased, Kabir, Najeeb, Muhammad Yasin and Muhammad Yunus, were busy in road construction. A tractor used by the complainant party struck against the 'Phalahi' tree belonging to Fazal Ellahi, accused. Mst.
Khalida, daughter of Fazal Ellahi, protested against the damage caused to the tree and alleged that the accused deliberately struck their tractor against the tree, in order to widen the road under construction. She left for the home to inform her father and brothers. At 11 'a.m. When the complainant and his associates were on their way after finishing the work, to Jarai Bazar, they came across the accused near the house of Muhammad Yusuf. Muhammad Ajaib accused was armed with 12 bore gun. Muhammad Akram and Muhammad Naib, carried sticks, whereas Tasib and Fazal Ellahi carried, their hatchets. They obstructed the complainant party and assaulted upon them. Zahid Hussain asked the accused to refrain from abusing them, on which Muhammad Ajaib aimed at him and fired with his 12 bore gun, which resulted in the death of Zahid Hussain. The complainant also received injury at the hand of the accused,
3. The motive of the occurrence is stated to be that the accused presumed that the complainant party while constructing the road wanted to remove 'Phalahi' tree belonging to Fazal Ellahi accused, in order to widen the road and for the reason they have committed the occurrence.
4. Mahboob Khan (P.W. 1) carried the dead body of Zahid Hussain, deceased, with him and went to Chowki Police Nar and lodged a report at 11-00 a.m. Which, was recorded by Muhammad Musa Khan S.I., Police (P.W. 22) who despatched the report at Police Station Kotli for registration of the case which was later on registered by Chaudhry Azhar Akhtar Inspector Police (P.W. 23) through report Exh. P.R. Muhammad Musa Khan S.I. (P.W. 22) examined the dead body, prepared the inquest report Exh. P.Z. And sent the dead body for post-mortem examination. He also prepared the injury from of the deceased Exh. P.K./l and took into possession the bloodstained clay vide memo Exh. P.G. .In presence of Haji Deewan Ali (P.V,'. 8) and Muhammad Arif (P.W. 9). He also picked up an empty from tire scene of occurrence vide recovery memo Exh. P.D. In presence of above mentioned witnesses. On 8.3.1992 the statements of the eye-witnesses Mehboob Khan (P.W. 1), Muhammad Kabir (P.W. 2), Muhammad Hussain (P,W. 3), Muhammad Yousuf (P.W. 4) were recorded and on 9.3.1992 the statements of eye-witnesses Muhammad Yunus (P.W 5). Muhammad Yasin (P.W. 6) and Najeeb Khan (P.W. 7) were recorded. Meanwhile Muhammad Akram, Naib Khan and Fazal Ellahi, accused also moved an application against the complainant who were referred to D.H.Q.
Hospital Kotli tor treatment Dr. Muhammad Iqbal Chaudhry (P.W. 14) handed over the clothing of the deceased to the police which were taken into possession vice recovery memo Exh. P.B. In presence of Mehboob Khan (P.W. 1) and .Muhammad Yunus (P.W, 5) Mehboob Khan, complainant handed over a hatchet and two sticks to the police which were allegedly snatched by the accused Fazal Ellahi, Muhammad Akram and Muhammad Naib during the occurrence which were taken into possession vide recovery memo Exh. P.D/3 in presence of Muhammad Yasin (P.W-. 6) and Najeeb Khan (P.W. 7). On 11-3-1992 a 12 bore gun was recovered from Ajaib accused vide recovery memo Exh. P.H. In presence of Muhammad Arif (P.W. 9) and Muhammad Latif (P.W. 10). Site-plan Exh. P.M.
Was got prepared by Muhammad Fayaz Patwari (P.W. 13). On 16.3.1992 a hatchet was recovered from Tasib, accused vide recovery memo Exh. P.E. In presence of Muhammad Yousuf (P.W. 4) and Muhammad Yasin (P.W. 6). A licence No. 5649 of 12 bore gun, produced by Muhammad Afsar was taken into possession vide recovery memo Exh. P.F. In presence of Deewan Ali (P.W. 8) and Ch. Qurban Hussain (P.W. 12). Dr. Muhammad Iqbal Chaudhry (P.W. 19) handed over a parcel of pellets, which were recovered during post-mortem, vide recovery memo Exh. P.L. In presence of Musharaf Hussain Shah Head Constable police No. 2586 (P.W. I6). He also obtained the injury form of Mehboob Khan (P.W. 1) Exh. P.K., injury form of Tasib, accused Exh. D.Z/2, injury form of Fazal Ellahi accused Exh. D.X., injury form of Muhammad Akram accused Exh. D.Y., injury form of Muhammad Naib accused Exh. D.Z., report of the Chemical Examiner Exh. P.Z./l, report of Serologist Exh. P.Z/2 and report of the Forensic Sciences Laboratory Exh. P.Z./3.
5. The post-mortem report Exh. P.J. Revealed that the deceased died due to direct fire arm injury of heart and lungs.
6. The accused persons were apprehended during the investigation and after completion of the investigation they were forwarded to District Court of Criminal Jurisdiction Kotli for facing their trial.
The accused- respondents in their statements under Section 242, 'Cr.P.C, denied the allegations levelled against them. In order to prove its case against the respondents the prosecution examined Mehboob Khan alias Maroof (P.W. 1), Muhammad Kabir (P.W. 2), Muhammad Hussain (P.W. 3), Muhammad Yousaf (P.W. 4), Muhammad Yasin (P.W. 6) Deewan Ali (P.W. 8), Muhammad Arif (P.W.
9) Muhammad Latif (P.W. 10), Fayaz Patwari (P.W. 13), Dr. Muhammad Iqbal Chaudhry (P.W. 14), Muhammad Hanif Constable (P.W. I6), Musharaf Hussain'Shah Head Constable Police (P.W. 19), Muhammad Bashir Constable Police (P.W. 20), Mahammad Ajaib selection grade constable police (P.W. 21). Muhammad Musa Khan Sub- Inspector Police (P.W. 22), Chaudhry Azh-ar Akhtar Inspector Police (P.W, 23) and Raja Abdur-Razzaq Inspector Police (P.W. 24). The respondents-1 accused in their statements under section 342, Cr.P.C., denied the allegations and desired to produce the defence evidence. In their defence the respondents examined Muhammad Suleman (D.W. 1).
Muhammad Yasin^ (D.W. 2) and Dr. Tasleem Ahmed (D.W. 3) as their witnesses.
7. The Trial Court after the conclusion of trial having found the respondents-accused not guilty by giving them benefit of doubt vide its judgment dated 13.6.1997, however, Muhammad Akram accused absconded after conclusion of trial from the Trial Court before hearing arguments and pronouncing the judgment. . He was, therefore, proceeded under Section 512, Cr.P.C, on 21.5,1996.
Hence this appeal for conviction of respondents-accused by the complainant.
8. Mr. Abdul Majeed Malliek, the learned counsel for the appellant, vigorously contended that the District Criminal Court Mirpur fell in error by acquitting the respondents-accused. According to him, the prosecution case stood proved beyond any reasonable shadow of doubl. The learned Counsel argued that the Trial Court in the operative part of its - that allegation of wilful murder of the deceased ascribed to Muhammad Ajaib respondent was corroborated by the testimony of the eyewitnesses but illegally acquitted him by stretching the rule of "benefit of doubt". He submitted that the finding of-the Trial Court was inconsistent and self contradictory. He maintained that the Trial Court fell in error in holding that the incident took place when the complainant party was widening the link road in the land of the respondents. Infact the link road was already complete and on the day of occurrence the complainant party made some repairs in the road when altercation took place between Mst. Khalida daughter of Fazal Ellahi accused and the deceased.
Mst. Khalida went home and inconsequence of her report respondents attacked the deceased and Muhammad Yasin. The learned counsel for the respondents pointed out that the Trial Court wrongly held that the right of defence of person or property was available to the respondents. The respondents attacked the deceased by forming unlawful assembly by preconcert. The learned counsel further argued that the Trial Court misdirected itself by constructing the theory that Muhammad Ajaib respondent should have not spared the eye-witnesses and would have killed them too with the deceased if he would have been present on the scene of occurrence which is purely a fib. He submitted that the relationship of some of the eye-witnesses with the deceased is not by itself sufficient to discord their truthful testimony. The learned counsel for the respondents further argued that the simple injuries suffered by respondents 2 to 5, were self inflicted and being simple in nature would not justify the acquittal of the respondents. He maintained that the Trial Court erroneously concluded that the ocular testimony is not compatible with the medical evidence. The distance between the assailant and the victim has been well explained by the prosecution witnesses. There was no illegality in the investigation of the case' submitted by the learned counsel. If there is any minor error in the investigation that can not tell upon the substantive evidence recorded in the Court. The learned counsel. Also contended that the Trial Court failed to point out any material inconsistency conflicting with the story of the prosecution. He maintained that the Trial Court failed to take note of the fact that prosecution case is supported by ocular version of five eye-witnesses who are unanimous on the point that the deceased was killed by a shot of 12 bore gun, which was tired by Muhammad Ajaib respondent-accused, which hit him, who in consequence of said injury fell down and died on the spot. The learned counsel submitted that the statements of the eye-witnesses about firing made by Muhammad Ajaib, were not challenged in their cross-examination. The learned counsel maintained that the time and place of occurrence and the murder of deceased by a gun shot, as alleged by the prosecution are even admitted by the defence from the cross-examination on the eye-witnesses because in cross- examination the words 'complainant party' have been used. The learned counsel further argued that the respondents-accused including Muhammad Ajaib denied their guilt and never raised counter version in their, statements under section 242, Cr.P.C, but in their statements under section 342, Cr.P.C. Muhammad Ajaib took the plea of 'Alibi'but all other respondents admitted the presence of all the accused on the scene of occurrence and took the stance that the .Complainant party trespassed their land and inflicted injuries upon them. He contended that the way the eye- witnesses were cross-examination by the defence, it transpires that the case of defence seems to be that Muhammad Ajaib accused did not commit the murder of the. Deceased but the fact of the matter is that one ' Banaras fired a shot upon Akram accused which hit the deceased. The learned counsel submitted that when both the prosecution and defence version are taken into juxta- position, the version, taken by the defence seems to be an after thought and concocted which does not appeal to a common mind. The prosecution story as alleged by the prosecution riot only stands proved by the ocular testimony of the eye-witnesses, who have no animosity to falsely implicate the respondents but is also supported by the medical evidence as well as the evidence of recoveries on the pointation of the respondents-accused, argued by the learned counsel. He contended that the prosecution story stands corroborated by the blood-stained clay and crime empty recovered from the place of occurrence and clothes of deceased wearing at the time of occurrence. It was also agitated by the learned Counsel for the appellant-complainant that the motive as alleged by the prosecution also stands proved by the evidence of the prosecution. The learned Counsel maintained that during purgation the eye-witnesses were found 'Adil'. Thus, the evidence of purgation strengthens the ease of prosecution to accept the credibility of the eye- witnesses. He further contended that the place of occurrence is owned by Fazal Ellahi but it is a .
Traditional thoroughfare of the villagers. Therefore, the case of defence of property does not emerge. He maintained that the injuries of the respondents-accused are simple except accused Tasib, who has a dislocation but he appeared before medical officer on 10.3.1992 and medical officer Dr. Tasleem Ahmed, a witness for defence, did not mention the duration of injury in the medical certificate. Therefore, the defence failed to make out a case that the fight between the parties was so much' serious that the respondents had an imminent danger to their lives, thus, the case of self defence has not been made out especially when no specific injury has been ascribed to the respondents-accused by the deceased. In support of his contentions he cited the following case law:-
(i) PLD 1978 S.C. AJK 146.
(ii) PLD 1980 Fed. Sh. C. 1.
(iii) PLD 1983 S.C. AJK 211.
(iv) PLD 1984 S.C. AJK .82. (v) PLD 1988 S.C. AJK 134. -
(vi) 1996 SCR 336.
9. M. Mushtaq Chaudhry the learned Additional Advocate General appearing on behalf of the State fully supported the contentions raised by the learned counsel for the complainant.
10. While replying the arguments advanced by the learned counsel for the appellant, Mr. Sherzaman Chaudhry, the learned counsel for the respondents zealously argued that the prosecution failed to establish its case against the respondents. He contended that the case was registered on the basis of belated FIR which casts a serious doubt on the prosecution case. He also submitted that the eye-witnesses were interested, closely related to the deceased and were inimical to the accused party. The learned counsel maintained that some material prosecution witnesses were given up by the prosecution and this fact also adversely reflects on the prosecution story. He further argued that the prosecution has admitted in FIR., that they snatched the sticks and hatchets from the accused during the occurrence but it was not admitted by the accused that they inflicted an injury to the deceased or to any prosecution witness. Thus, according to learned counsel for the respondents the case of the defence is not of a self-defence but is of total denial.
He argued that it is prosecution which has to prove its case beyond any shadow of doubt and not the defence. He pointed out that the link road was not in existence before the occurrence rather the complainant party was forcibly constructing the road from the land of the accused party.
Therefore, the complainant party, was aggressor who injured the accused party. Medical' reports reflect that Fazal Ellahi, accused suffered four injuries out of which two injuries were sustained on parietal region. Muhammad Akram received five injuries in the incident, out of which three were incised wound. Muhammad Naib suffered two injuries one of them wits caused on the parietal region likewise. Tasib, the other accused was also injured. Both the injuries suffered by him were grievous. Thus, the number and nature of injuries sustained by the accused persons though simple but were of such nature which prove that the complainant party was aggressor and not the accused. He pointed out that investigation was dishonestly done and it is a case of glaring misuse of the powers of Musa Khan S.I. Police (P.W. 22), who has been-wailing tor the prosecution party to get a case registered against the accused and did n6t register an FIR lodged by the accused party.
According to the learned counsel for the respondents, Musa Khan S.I. Police (P.W. 22) is guilty of manufacturing the false evidence thus, no credibility or credence can be given to the investigation done by said Musa Khan. The learned counsel maintained that the recoveries made from the respondents were also doubtful and the testimony of the eye-witnesses were not corroborated by the medical evidence because according to the facts and circumstances of the case the fire was made from the distance of few inches. In this respect he referred the post-mortem report Exh. P.J.
And developed this argument that when the fire is made front front side the wound will be a circular but front the postmortem report the pellets were found in the body of the deceased alongwith the card:wad which proves that the fire was made from a very close range. The learned counsel further argued that the alleged accusation of firing by Muhammad Ajaib accused does not appeal to a prudent mind as according to the prosecution story when Muhammad Ajaib shot a fire at the first instance then how it was possible that when his uncle and brothers were injured by the complainant party, he did not take any action and stood still, which transpires that the accused were falsely implicated in a concocted case. He further submitted that prosecution case suffers from serious illegalities and infirmities. Thus, the Trial Court did not commit any error while acquitting the respondents-accused. In support of his arguments the learned counsel for the accused referred 1981 P.Cr.L.J. 809.
11. In the light of the arguments advanced at the Bar, I have gone through the record of the case with utmost care and the authorities cited by the learned counsel for the parties. At the very outset, I have to consider the respective versions of the prosecution as well as that Of the defence. The prosecution case briefly is that on the day of occurrence the accused party assaulted the complainant, party after being armed with bore gun, hatchets and sticks. Zahid Hussain, deceased forbade the accused party not to abuse while Muhammad Ajaib accused fired a shot upon him by's 12 bore gun from a distance of 5 karams (about 27 feet), which hit upon the chest of the deceased who fell down and expired on the, spot. The accused attacked the complainant party with the hatchets and sticks which were snatched away by the complainant party whereupon the accused also got injured whereas defence version is that the deceased was not murdered by Muhammad Ajaib accused but by Banaras son of Muhammad Hussain (P.W. 3) and furthermore Muhammad Ajaib was not present at the scene of occurrence rather the complainant party was the aggressor who trespassed the land of Fazal Ellahi accused, tried to cut a tree and launched an attack upon the accused as a result of which the accused got injured. The defence version has been disclosed not only through the suggestions made by the eye-witnesses during the cross- examination and from the defence evidence but also through the statements of the accused party in their examination under section 342 of Cr.P.C. It is accepted that in presence of counter version the Court is enjoined to put the version in juxtaposition to ascertain the truth. Therefore, when both the versions are taken into a juxta-position and analysed in its true perspective, the version taken by the defence seems to be improbable, concocted and after thought. For the reason the accused never raised a counter version in their statements under Section 242 of Cr.P.C. Particularly Muhammad Ajaib accused never took the plea of 'alibi' in his statement above mentioned and for the first time in their examination under section 342 of Cr.P.C, counter version was taken by the accused party including Muhammad Ajaib. I am also alive of the fact that in absence of their raising counter version in their statements under section 242 of Cr.P.C, the accused are not debarred from taking any counter version at the time of cross-examining of the prosecution witnesses or at the stage of recording of their statements under section 342 of Cr.P.C, because it is settled principle of criminal law that it is always the responsibility of the prosecution to prove its case beyond any reasonable doubt.
12. I have carefully gone through the cross-examination made by the defence on the eye- witnesses and arrived at the conclusion that the place of occurrence, the presence of the accused party the presence of the eyewitnesses and the death of Zahid by a shot of 12 bore gun are admitted by the defence. It will be relevant to note here that the question of presence of Muhammad Ajaib at the scene of occurrence has never been challenged in cross-examination. For example Mehboob Khan (P.W. 1) categorically stated that:- {{Urdu text missed}} But the above mentioned statement was not particularly challenged by the defence and only a suggestion was put as to whether Banaras son of Muhammad Hussain shot a fire upon Akram which hit Zahid but the same was denied by the witness. Muhammad Kabir (P.W. 2) also specifically stated that Ajaib shot a fire with a 12 bore gun which hit upon the chest of the deceased who fell down, but the presence of Ajaib at the spot or his making a fire upon the deceased has not been challenged in cross- examination and it was again suggested that Banaras shot a fire upon Akram which inadvertently hit Zahid deceased, same was denied by the witness. According to the prosecution story, Muhammad Yasin (P.W. 6) who accompanied by Zahid, stated that the accused party stopped both of them and launched an attack. Ajaib fired a bullet which hit upon the chest of Zahid who fell down and resultantly died on the spot. But the fact of presence of Muhammad Ajaib accused on the scene of occurrence or the fact of firing by Muhammad Ajaib upon Zahid, deceased were not specifically challenged by the defence in the cross-examination and in a routine matter it was suggested that Banaras shot a fire which hit Zahid, deceased. In this state of affairs, presence of Muhammad Ajaib at the scene of occurrence and the act of his firing upon the deceased has been amply proved. The recovery of bloodstained clay and crime empty from the place of occurrence also suggest that in fact the occurrence took place on the same place which has been alleged by the prosecution. It is quite evident from the evidence of the eye-witnesses that the occurrence took place in the manner as alleged by the prosecution and not as suggested by the defence. It will be appropriate to note here that the prosecution version seems to be more probable because the said version was taken by the prosecution right from the day of occurrence and not after a year as was taken by the defence while examining the prosecution witnesses, The defence has taken a definite stand in cross-examination that instead of firing by Muhammad Ajaib accused, deceased was murdered by Muhammad Banaras who was having a gun and he fired upon Akram which inadvertently hit Zahid, deceased but this story can not be accepted because it does not find any support either by the defence evidence or by the prosecution story. The presence of Banaras on the spot has not been proved by the evidence rather it has been clearly proved that Muhammad Ajaib, accused, was only person who was having a gun in his hands, at the time of occurrence. The 12 Bore gun (P.6) has also been recovered from Muhammad Ajaib accused at his instance. The licence of the gun No. 5649 was produced by Muhammad Afsar, father of Muhammad Ajaib accused, which was also taken into possession by Investigating Officer through recovery memo Ex.P.F. Furthermore Akram accused did not give any explanation to this fact in his statement under section 342 of Cr.P.C, that Banaras shot a fire upon him which hit Zahid instead of him.
13. The note may also be taken to the fact that the Trial Court firstly declared the prosecution witnesses 'Adil' and later on discorded their testimony without giving any cogent reason. The Trial Court at page 29 of its judgment held as under:-' {{Urdu text missed}} Thus, the said finding of the Trial Court has not been recorded according to the admitted principle of criminal jurisprudence because once the witnesses have been declared 'Adil' then they can- not be declared liars in the same breath without any solid and cogent reason, even though they are interested witnesses. If witnesses are found 'Adil', the evidence of purgation strengthens the case of prosecution to accept the credibility of eye-witnesses as observed in Khawaja Imtiaz Ahmed v. The State (PLD 1988 S.C. (AJK) 134), In Niaz Muhammad alias Jala and another Vs. The State (PLD 1983 S.C. (AJK, 211) at page 218 paragraph I6 of the judgment, it was opined as:- "On careful examination the evidence-of these P.Ws is convincing on material particular of the case. Besides if witnesses found competent, under Shariat Law and then discarding their evidence on account of their being related to the deceased,, would in fact amount to disregarding the qualification and capacity of a witness otherwise approved by Shariat Law. If we do so we may be guilty of violating the provisions of Shariat Law".
14. It will not be out of place to mention here that the Trial Court at page No. 35 of its Judgment has accepted the prosecution evidence to the extent of Muhammad Ajaib accused but acquitted him because of some doubts. The relevant portion of the judgment reads as under:- 1 A .JS / W**V ,,./ -- * v * w A- 1a- {{Urdu text}} The above mentioned finding of the Trial Court is inconsistent and self contradictory. When the prosecution story has been proved through ocular testimony then according to the Trial Court the other doubts like the complainant party was forcibly constructing road- against the will of the owner thus, the owner of the land was justified to stop the complainant and to defend himself and his property, does not matter. Another ground which made basis for the impugned judgment, was the distance of firing by Muhammad Ajaib accused upon the deceased arid the injuries of the accused party. But these grounds are baseless and cannot injure the case of the prosecution.
15. Now l take up all these points one by one:-
(a) As far as the construction of road is concerned, in this respect the learned counsel for the respondents-accused vehemently argued that before the occurrence link road was not in existance rather the complainant party was forcibly constructing the road. The learned counsel referred to the statements of Muhammad Kabir (P.W. 2), Muhammad Hussain (P.W, 3) and Muhammad Arif (P.W. 9). I myself perused the above referred statements and have not been able to find out any material in support of the arguments of the learned counsel tor the defence. For instance Muhammad Kabir (P.W. 2) stated that the link road was constructed in the year 1992.
Muhammad Hussain (P.W. 3) deposed that the link road was constructed in the month of march and repairs were made not only on the day of occurrence but a day before. Similarly, Muhammad Arif (P.W. 9), a witness of recoveries, testified that the road was constructed during that period when the occurrence took place. Furthermore, Mehboob Khan (P.W. 1), Muhammad Yousaf (P.W, 4) and Muhammad Yasin (P.W. 6) unanimously supported the prosecution story and deposed that they were making repairs on the road which was already constructed. In this respect first question of cross-examination on Muhammad Yousaf (P.W. 4) is referred where he was suggested as under:- {{Urdu text missed}} Thus when the statements of P.Ws, as a whole are carefully appraised on this point, it makes abundantly clear that the link road was already constructed before the day of occurrence and the complainant party was only making some repairs in the road when altercation took place between Mst. Khalida daughter of Fazal Ellahi accused and the deceased. Therefore, this argument is not available to the learned counsel for the accused that the complainant party was forcibly constructing the road and the right of private defence of property was available to them. It is manifestly clear from the record that the place of occurrence is not the link road but a.
Thoroughfare on which the deceased was going with Muhammad Yasin (P.W. 6) when the occurrence took place and this is also admitted to the defence as mentioned in the earlier part of this judgment. Furthermore Mehboob Khan (P.W. 1) was never asked by the defence as to whether the place of occurrence was the link road. Muhammad Kabir (P.W. 2) categorically stated:- {{Urdu text missed}} Muhammad Yousaf (P.W. 4) deposed as under:- {{Urdu text missed}} Therefore, the Trial Court was misled by holding that the occurrence took place on the link road instead of a common-way near the house of Muhammad Yousaf (P.W. 4),- where the deceased was going to Jarahi Bazar with Muhammad Yasin (P.W. 6). The place of occurrence is ( ) owned by the accused party but it is the common way of the villagers. Muhammad Fayyaz Patwari (P.W. 13) has also supported this version of the prosecution that the place of occurrence is a common-way *( ). On this account it is not a case of criminal tresspass by the complainant party, where the right of private defence of property was available to the accused. It will be appropriate to mention here that the style of cross- examination does not disclose that at the time of the, occurrence the construction of the road was the bone of the contention between the parties rather the accused were furious as to why their' Phalahi ' tree was damaged but the~Trail Court didnot consider this aspect of the case and gave the benefit of self-defence and defence of the property to the accused in an erroneous manner. The defence did not suggest to any of the eye-witnesses as to whether the occurrence took place because of the construction of the road. All the eye-witnesses were suggested that they went to cut the tree of Fazal Ellahi due to which the occurrence took place. In this respect Mehboob Khan (P.W. 1) was suggested on page 74 of the Trial Court file as under:- * w T J*' {{Urdu text missed}} At page 83 of the Trial Court file a suggestion was put to Muhammad Kabir (P.W. 2) in like manner:- {{Urdu text missed}} At page 88 of the Trial Court file, Muhammad Hussain (P.W. 3) answered the suggestion put by the defence in the following manner:- {{Urdu text missed}} At the back side of the page 91 of the Trial Court file, Muhammad Yousaf (P.W. 4) deposed as under:- {{Urdu text missed}} Muhammad Yasin (P.W. 6) answered the suggestion of the defence in the following manner at page 96 of the Trial Court tile:- {{Urdu words missed}} The aforesaid suggestions clearly disclose that it was never the case of the defence that the occurrence took place because of the construction of the, road rather the defence version was that the accused went to cut the tree of 'Phalahi' and when Fazal Ellahi stopped them, the complainant party attacked upon the accused.
(b) Much emphasis was made on the point of distance of firing and it was argued that according to the distance described by the P.Ws, if is not possible that victim could be targeted by the assailant. According to the site plan Exh. P.M. The distance between the assailant and victim is 5 Karams (approximately 27 and half feet), but according to the post mortem report Exh. P.J. The distance of firing ranges from 75-130 c.m. (approximately 5 feet). It will not be out of place to mention here that Dr. Muhammad Iqbal Chaudhry (P.W. 14) stated in his cross-examination that the distance, of firing described by him in post-mortem report Exh-P.J, is not conclusive rather he has described the range of firing: I have also considered the evidence of P.Ws. Mehboob Khan (P.W.
1) who claimed to have witnessed the occurrence from the distance of 60 feet but he was not cross-examined on this point as to whether what was the distance between assailant and the victim at the time of occurrence. Muhammad Kabir (P.W. 2) stated before the Court that Muhammad Ajaib tired at the deceased from the distance of about 5 to 6 yards but this statement was never challenged in the cross- examination. The witness was asked about the distance of other P.Ws, from the place of occurrence, who rightly described the same. Muhammad Hussain (P.W., 3) also deposed that Ajaib accused tired at the deceased from a distance of about 4 to 5 yards and at that time he was at the distance of 20 to 25 yards from the deceased. Muhammad Yousaf (P.W. 4) submitted before the Court that at the time of tire he was at the distance of 60 to 70 yards from the scene of occurrence while deceased was at the distance of about 3 and half yards from Muhammad Ajaib accused. Muhammad Yasin (P.W. 6) claimed to have witnessed the occurrence from a very close range, who was standing 3/4 yards away from Muhammad Ajaib accused while Zahid, deceased was at the distance of 2 to 3 yards from the accused. He also submitted that:- {{Urdu text missed}} Thus, the P.Ws, have supported the prosecution story on the point of distance. If at all some infirmities do appear in their statement these are natural and probable. The P.Ws, who are villagers, could not be accepted to be very accurate while describing the distance of firing in terms of feet and yards. Especially in the instant case when P.Ws, were a bit away from the scene of occurrence and they were coming to the place of occurrence from the different sides when the occurrence took place. Thus it was difficult for them to ascertain the distance in the mathematical manner because at the time of the murder neither assailant stands nor the victim. Therefore, minor discrepancies in the statements of the eye-witnesses regarding the distance from where the shot was fired do not make them unreliable. The Apex Court of AJK has time and again observed that the illiterate witnesses can not describe the distance in a mathematical manner and when their testimony rings true, such minor infirmities would not matter at all. Our aforesaid view finds support from a case reported as The State v. Muhammad Ahram and Mst. Naseem Ahhter v. Muhammad Ahram and three others and Muhammad Arif and three others v. The State (PLJ 1988 S.C. AJK 36).
Similarly a reference can also be made to a case titled as Niaz Muhammad alias Jala and another v. The State (PLD 1983 S.C. AJK 211). It may be noted that in the presence of ocular version the site plan could hardly be regarded a substantive piece of evidence. Therefore, no adverse inference under the circumstances could be drawn against the prosecution on this count.
(c) Another objection was raised by the learned1 counsel for the accused that post-mortem report does not support the prosecution case because in presence of pellets and card-wad in the body of the deceased proves that the firing was made from a very close range. I have given my earnest consideration to the point, it may be mentioned here that at the time of the occurrence the murderer and the deceased may move to the difference sides and when the pellets enter in the body they create their on direction, therefore, the presence of the pellets and card-wad does not make the case of prosecution doubtful. In the present case, it is admitted on the part of the defence that the deceased was murdered by a shot of 12 bore gun, who after having been shot, had died immediately. The presence of P.Ws, and the accused is also admitted, therefore, the medical evidence corroborates the ocular version. It will not be out of place to mention here that the medical evidence is type of confirmatory evidence and when the eye-witnesses are cogent and reliable redical evidence loses its value and it cannot out-wit the ocular version. In this respect, reference can be made to a reported case titled as Muhammad Hani/v. The State (PLD 1993 S.C.
895).
(d) As regards the question of injuries upon the person of the accused, it was argued that four accused Tasib, Fazal Ellahi, Muhammad Akram and Muhammad Naib were severely injured which fact itself is sufficient to negate the prosecution version and it is proved that the complainant party was the aggressor. It was also held by the Trial Court that the fact of injury is proved from the prosecution evidence and except Zahid deceased nobody from the prosecution side was injured rather according to the complainant, he was injured while snatching away the hatchets and sticks from the accused. It was also recorded by the Trial Court that it is humanly impossible that when Muhammad Ajaib accused was armed with the gun and his real brothers, uncle and cousins were being injured, he did not defend them. It will be sufficient to state here that every body has got its on psychology and it is not necessary that after committing a murder Muhammad Ajaib may have opted for another criminal act or he might have scared of the commission of the murder. It is also on the record that after firing a shot upon Zahid deceased Muhammad Ajaib accused immediately left the scene of occurrence. A perusal of the injury reports of the accused reveal that Fazal Ellahi and Muhammad Tasib suffered simple injuries by the blunt weapon while the injuries sustained by Muhammad Akram are sharp and blunt. The injury report of Tasib accused discloses that he suffered a dislocation on shoulder joint and a fracture on ulna but he did not appear before police or any medical officer tor his medical examination till 10th of March 1992. Furthermore injury form Exh. P.Z/2 does not disclose the probable duration of injury and it was also not deposed by Dr. Tasleem Ahmed Khan (D.W. 3) in his testimony. It may usefully be stated that Mehboob Khan (P.W.
1) was also injured and he suffered two injuries upon his shoulder and cheek, although simple by blunt weapon. The P.Ws have stated that how and in which manner the complainant and the accused sustained these injuries. The complainant has categorically stated that when he went closer to Zahid deceased, Muhammad Naib accused launched an attack upon him with a stick which hit upon his right shoulder after that he tried to snatch away the- stick with the help of the other witnesses, resultantly, he, Muhammad Yasin and the accused got injured. Muhammad Yasin (P.W. 6) has also corroborated this version in his statement but the Trial Court misconstrued the statement of Mehboob Khan (P.W. 1) and recorded on page No. 33 of the judgment that according to the statement of complainant he was injured while snatching away hatchet and sticks from the accused. As far as this portion of the statement of Musa Khan Sub-Inspector Police, (P.W. 22) is concerned where he stated that accused were injured while snatching away sticks from the complainant party is a concession to the defence which has no negative bearing upon the prosecution case because it was incumbent upon the Investigating Officer to explain that which member of the complainant party was armed with the weapon of offence and how the accused were injured. It will be useful to state here that Muhammad Musa Khan S.I. Police (P.W. 22) has also committed some mistakes during the investigation when he did not mention in the site-plan Ex.P.M.
The place where the road was being repaired or the damaged part of the 'PHALAHI' tree. During the investigation he arrived at the conclusion that all the accused were present on the scene of occurrence but he did not mention the name of other accused in the site plane Exh. P.M. It is admitted principle of law that the mistake and irregularity of investigation or inaction of police could not demolish the prosecution case if otherwise the offence against the accused is proved in the light of-the evidence on the record. In this respect case of Kabir Hussain Shah v. The State (PLD 1984 S.C. AJK 82) can be referred. Now the question arises as to whether the injuries sustained by the accused persons were of such a nature that the accused had a right of self defence and were at liberty to defend themselves to the extent of committing even a murder, evidently answer is no, because according, to the facts and circumstances of the case the accused had no reasonable apprehension of danger to their lives. Therefore, the Trial Court was not justified to hold that the accused acted in their defence. In Khawaja Imtiaz Ahmed v. The State (PLD 1988 S.C. AJK 134) while dealing with the point as to whether circumstances warranted for the benefit of self-defence, it was observed:- "The exception of right of self-defence, of person or property is permitted under law but at the same time, in order to avail the exception of self-defence, it is essential to show; (i). That the occurrence was not due to the fault or act of accused; (ii) that there was an immediate danger to life, in honest belief of accused, (iii) that no reasonable course was available to accused to escape or avoid the necessity; and
(iv) that there was no intention to cause more harm than necessary for the purpose."
16. It is quite evident from the record that in the present case the injuries of the accused were not suppressed because the prosecution got them medically examined and their injuries statements were also duly made part of the file. Therefore, no adverse inference can be drawn against the prosecution. I may also refer to two judgments of the Apex Court of Azad Jammu and Kashmir reported as Muhammad Khalil v. The State (1992 SCR 249) and Shabhir Ahmed v. The State and another (1997 SCR 206), in which this view was taken that the mere fact that the injuries on the person of the accused were not explained would not bring the case within the ambit of self- defence.
17. It was argued by the learned counsel for the respondent that the FIR lodged by the complainant was a belated one because according to the statement of the complainant he stopped at Jarahi Bazar for one and half hour. According to him, this delay was not explained which really casts a heavy doubt about the preparation of a concocted FIR. It. Will be pertinent to mention, here that defence did not obtain any explanation from the complainant as to why the complainant stopped at Jarahi Bazar for one and half hour. The occurrence took place at 11-O Clock and FIR. Was lodged at 1-30 p.m. The place of occurrence is situated very close to the house of deceased, therefore it is but natural and probable that the complainant might have taken sometime in state of grief and mourning when a recently married young man of 24 years old was murdered. It might have taken some-time for picking up the dead body from the spot, carrying a cot from house of the deceased, the gathering of the parents and the dears one on the scene of occurrence and then carrying the dead body to Jarahi Bazar. It has also been explained by the complainant that some time was spent in inditing FIR by some one from Jarahi Bazar. Thus, inference cannot be drawn that the FIR was prepared after conducting preliminary inquiry on the spot and sufficient explanation has been brought forwarded by the complainant. It has been consistent view of Supreme Court of Azad Jammu and Kashmir that delay in filing F.I.R, per-se is no ground for throwing out the case of the prosecution. If from the perusal of the record it transpires that a reasonable explanation is furnished by the prosecution regarding the delay then it assumes a very little importance. In the present case a reasonable explanation is available as mentioned above and furthermore the occurrence is of a day light, time and place of occurrence and the presence of the accused and the prosecution witnesses is 'admitted by the defence. Therefore, the contention raised by the learned counsel for the respondents is of no substance. It may be stated here "that mere delay in absence of any allegation of substitution or concoction is not important. In this respect reference can be made to the cases reported as Muhammad Ramzan v. The State, Muhammad Zaman v.
Muhammad Ramzan (1996 SCR 336 and Shabhir Ahmed v. The State and another (1997 SCR 206).
Similarly it was observed in the case of Nazir Ahmad Khan and three others v. The State (1998 SCR 95) that delay in lodgement of FIR is not fatal like the rule of limitation as is the case in civil matter, furthermore, the explanation for the delay can be given during the course of trial. The Apex Court of Azad Jammu and Kashmir has taken the same view in its latest judgment in an unreported case titled Zahir Hussain Shah v. Shah Nawaz Khan and others dated 30.6.1999, wherein at page 30 it was opined as under:- "In our view the delay in lodging the FIR. (which is not found in the instant case), assumes importance when the identity of the accused persons is doubtful and is not established beyond any reasonable doubt. In the instant case the identity of the accused was never in dispute.
Therefore the delay in lodgement of F.I.R, can not be applied like a rule of limitation as is applied in civil cases."
18. In these circumstances we are convinced that F.I.R, about the occurrence was not a belated one which was lodged at Police Chowki Nar and later on was sent to the Police Station Kochi on which a formal case No. 51/92 was registered at 3:30 p.m. At police station Kochi.
The factum of recovery was not sufficiently dealt with by the Trial Court and it was wrongly recorded on page No. 33 of the judgment that according to the recovery memo Exh. P.D/3 a stick was shown to be recovered from Tasib accused when according to the prosecution case Tasib attacked the complainant party with a hatchet. The recovery memo, Exh. P.D/3 which is on the page 29 of the Trial Court file does not speak about the recovery from Tasib-accused rather it deals with the recovery of a hatchet from Fazal Ellahi accused and two sticks from Muhammad Akram and Muhammad Naib accused persons. The recovery of blood stained clay P. 5 and clothing of Zahid deceased P. 1, P. 2 and P. 3 are not challenged by the prosecution. The recovery of licence No. 5649 of 12 bore gun P. 6, weapon of offence which is in the name of Muhammad Afsar father of Muhammad Ajaib accused also stands proved. Musharaf Hussain Shah Head constable police (P.W. 19) and Muhammad Hanif constable Police (P.W. I6) have testified the fact that Dr. Muhammad Iqbal Chaudhry (P.W. 14) handed over a parcel of pellets to the police which were removed from the body of the deceased during the post-mortem. Muhammad Arif (P.W. 9) and Muhammad Latif (P.W. 10) have deposed about the recovery of 12 bore gun P. 6 on the pointation of Muhammad Ajaib accused. The recovery of empty was witnessed by Muhammad Yousaf (P.W. 4) and Deewan Ali (P.W. 9). The recovery of crime empty was effected on the same day from the scene of occurrence. If for any reason the evidence of Deewan Ali (P.W. 8), father of the deceased is discarded even though recovery of crime empty is proved through the evidence of Muhammad Yousaf (P.W. 4) and Muhammad Musa Khan Sub-Inspector Police (P.W. 22). In many cases the sole statement of Investigating Officer about the recovery effected by him was held to be a valid piece of corroborative evidence, Muhammad Ramzan v. The State. (1996 SCR 336) but in the present case beside the investigating officer another marginal witness is available to prove the recovery.
The recovery of hatchet and sticks have been stated by Mehboob Khan complainant as well as by Muhammad Musa Khan Sub-Inspector Police (P.W. 22) but the said recovery was not challenged through cross- examination of Muhammad Musa Khan Sub-Inspector Police (P.W. 22). The recovery Memo Exh. P.E. Of a hatchet from Tasib accused was proved through evidence of Muhammad Yousaf (P.W. 4) and Muhammad Musa Khan (P.W. 22), which was maile on pointation of the accused. It is also not disputed by the defence that the bloodstained clay and the blood on the clothes of the deceased was not of human being. Furthermore, the report of Chemical Examiner Exh. P.Z/1 and the report of the Serologist Exh. P.Z/2 Drove that the above mentioned articles are stained with human blood of group B. The report of Forensic Sciences Laboratory Exh. P.Z/3 proves that the crime empty was tired from the shot gun of 12 bore No. 1454 recovered from Muhammad Ajaib accused. It will be relevant to note here that the Trial Court has not recorded any finding about the recovery of bloodstained clay or blood on the clothes of the deceased and recovery of 12 bore gun P. 6, weapon of offence. From the above discussion it is held that strong corroborative evidence is available on the tile in support of the ocular version of the P.Ws.
19. In the present case Mehboob Khan (P.W. 1) is real brother of the deceased while Muhammad Yousaf (P.W. 4) and Muhammad Yasin- (P.W. 6) are closely related to the accused. It is, thus, to be seen that the evidence of the interested witnesses ring true and the testimony of Muhammad Kabir (P.W. 2) and Muhammad Hussain (P.W. 3) is also convincing and reliable in support of the prosecution story. I have already dealt with the. Point that deposition of the eye-witnesses is clear, cogent, convincing and reliable to the extent -of murder of Zahid, deceased, committed by Muhammad Ajaib accused. It was vehemently argued by the learned counsel for the respondents that Muhammad Kabir (P.W. 2) and Muhammad Hussain (P.W. 3) are inimical to the accused thus, cannot be relied upon, The Trial Court has dealt this point in the impugned judgment that all the witnesses were getting the benefit of construction of the road. Therefore, they have falsely implicated the accused in the case. According to the evidence on the record no material is available which lends support to this. Argument of the learned counsel for the respondents. The non participation of accused persons in the marriage ceremony of Zahid or litigation of Muhammad Hussain (P.W. 3) with Muhammad Atisar is not sufficient to prove that the P.Ws, were inimical towards the accused. It is humanly impossible to involve an innocent person in the case of murder instead of the real culprit. The motive set up by the prosecution fully supports the prosecution version that when the tractor struck with the 'Phalahi' tree and altercation took-place between Mst. Khalida Bi daughter of Fazal Ellahi accused and Zahid deceased, Khalida Bi went home and told about the incident to her father and brothers. It seems that when altercation took- place between a young man and a lady which was described by Khalida Bi to her parents and other relatives in her on accent which enraged, irritated and exasperated the accused party and for this reason, Zahid deceased was made target. It is settled principle of criminal Jurisprudence that the evidence of an interested witness cannot out-rightly he discarded because if a witness is not interested he is not always a truthful person and if he is interested he is not always a liar. The criteria to ascertain the veracity of a witness is the testimony or deposition which he states in the witness-box. If such statement rings true and comes from a natural witness, it is sufficient to record an order of conviction without any further corroboration. In case reported as Muhammad Sharif v. The Slate (PLD 1978 S.C. (AJK)- 146), while dealing with the case of interested witnesses it was observed in the report at page 151 in the following manner:- "Whether a witness is to be believed depends on the circumstances and facts of each case.
Assessm ent of interested and partisan evidence, is of course, a difficult matter which engaged the attention of superior Courts time and again. The first thing which is of paramount importance is to see whether the witness is a natural witness and if Courts come to the conclusion that the witness is a natural witness then in the case off testimony of such a witness law does not make incumbent upon the Courts to ask for corroboration before relying on the testimony of such a witness.
Evidence of such a witness, however, is required to be scrutinised with great care and caution in order to eliminate any possibility of doubt and Courts must also determine as to whether or not he is a witness on whose words implicit reliance can be placed without independent corroboration.
Nevertheless, no inflexible rule can be formulated in his behalf. In each case, the evidence of witnesses has to be evaluated on merits and if it rings true in the context and the circumstances of the case free from any fault and uncontradicted by any cogent circumstances emerging from the case, it must be relied upon as the basis for conviction without any corroboration. In a case of this nature, where the statement of an interested but natural witness can be believed with implicit faith without difficulty, corroboration is not to be insisted upon as a rule of law or as a rule of prudence and evidence will not be rejected merely because the witnesses are related with the deceased and inimical towards the accused. The safe administration of criminal justice demands that Court should draw its on inference flowing from evidence and circumstances and not be deterred by reason of incompleteness of tale given by each party."
Another reference can be made to a case reported as Niaz Muhammad alias Jala and another v.
The State (PLD 1983 S.C. (AJK) - 211), wherein the following principle was enunciated at page 218 of the report:- "The evidence of P.Ws, could not be rejected merely on the ground of relationship. Conviction can be based on evidence of even interested witnesses provided of course it is otherwise of a convincing quality. It is indeed correct to say that while considering such evidence Court should be on its guard and would conduct the appraisal of the evidence with utmost care and caution. If on careful appraisal it is found of a quality on which safe reliance could be placed, it will not then be necessary to look tor the further confirmatory evidence."
Again in case reported as Ahmad Khan and two others v. The State (1991 P.Cr.L.J. 301), the, testimony of real brother of the deceased was relied upon without any corroboration.
The similar situation came across in an un-reported case titled Zahir Hussain Shah v. Shah Nawaz Khan and others decided by Supreme Court of AJ&K on 30.6.1999, where the testimony of real son of the deceased was relied upon and it was opined on page 42 of the judgment as under:- "Though Azrar Hussain Shah happens to be the real nephew of Murtaza Hussain Shah, but he had not direct enmity with the accused. Similarly Zahir Hussain Shah who happens to be the son of deceased was having no animus or grudge against the accused. Hussain Shah, another eye- witness, also corroborates the evidence of eye-witnesses Azrar Hussain Shah and the complainant.
The Trial Court also opined that if the evidence of eye-witness is read alongwith the version taken by the accused- respondents then one comes to the conclusion that in fact these witnesses were present on the scene of occurrence and they saw accused-respondent Shah Nawaz Khan tiring upon deceased as a result of which he was injured and ultimately passed away."
It has been ruled in Muhammad Rafique and others v. The State and others (1999 SCMK 1208) that:- "The non-production of Zulfiqar and Mukhtar Ahmad, the injured eye-witnesses, does not in any way discredit Muhammad Ismail and Muhammad Boota P.Ws., for, it is not necessary that the prosecution must produce all the persons witnessing the occurrence. No particular number of witnesses is fixed under the law to prove the offence of murder. Muhammad Ismail and Muhammad Boota P.Ws, have given a detailed account of the occurrence and despite lengthy cross-examination no infirmity could be brought out in their statements. True that they are real brothers, but the mere fact of their relationship inter se would not dub them as interested witnesses. The motive as stated by Muhammad Boota P.W. 6 fits in with the prosecution version and there is nothing on record to indicate that there was any other reason leading to the occurrence, or some persons other than the appellants had any grouse or grievance against the complainant party. The defence version put forth by the accused that the complainant party had attacked them when they were passing near the house of the deceased, does not appear to be convincing."
20. Here it may be pertinent to refer that corroboration is only required by way of abundant caution that an innocent person may not be condemned. Corroboration does not necessary mean the evidence of any independent witness but anything in the circumstances which tends to satisfy the Court that any such interested witness has spoken the truth is sufficient. In this regard a reference can be made to a case reported as Muhammad Ramzan v. The State and Muhammad Zaman v.
Muhammad Ramzan (1996 SCR 336). Similar view was taken in numerous cases by Supreme Court of Pakistan and Supreme Court of Azad Jammu and Kashmir. Our aforesaid view also finds support from a reported case, referred by the learned counsel for the appellant, titled Muhammad Sharif v.
The State (PLD 1978 S.C. (AJK) - 146). A latest judgment of the Supreme Court of Pakistan reported as Gul-Zaman v. The State (1999 SCM R 1271) can also be referred in favour of this view.
21. The learned counsel for the accused also agitated this point that the prosecution did not produce Muhammad Yunus (P.W. 5) and Najeeb Khan (P.W. 7) in support of its case, who were given up by the prosecution, which adversely reflects on the prosecution story. In this regard, it will be sufficient to hold that it is not necessary for the prosecution to produce all the eye-witnesses before the Court because no particular number of witnesses is fixed under the law to prove the offence of murder, Muhammad Rafique & others v. The State (1999 SGMR 1208).
22. It was also seriously contested by the learned counsel for the respondents that according to the statements of P.Ws, the accused were present at Police Post Nar before the arrival of complainant and his companion but the case was not registered on behest of the accused party. Therefore, the dishonest investigation of the Investigating Officer cannot be taken into consideration. No doubt that Mehboob Rhan (P.W. 1) and Deewan Ali (P.W. 8) have admitted this fact that before their arrival at Police Post Nar Fazal Ellahi and Muhammad Akram accused were present there but no evidence has been produced to prove the fact as to whether the accused party lodged any F.I.R, before arrival of the complainant and his companion, in my opinion the accused party went to the Police Post Nar to create some defence. A perusal of the copy of 'Roznamcha' Exh. P.C. Reveals that the .F.I.R, by the complainant was lodged at 1:30 p.m. While at 1:50 p.m. Muhammad Akram, Muhammad Naib and Fazal Ellahi accused reached to the Police Post Nar but they did not lodge any report whatsoever. Furthermore, this fact also finds support from the statement of Muhammad Musa Khan, Sub-Inspector Police, (P.W. 22) who has deposed that first report about the murder was presented by the complainant. Therefore, the mere presence of some of the accused at the Police Post Nar before arrival of the complainant does not make the prosecution case doubtful when the ocular testimony of prosecution witnesses inspires confidence as it has been held in the earlier part of the judgment.
23. The learned counsel for the respondents vehemently criticized the statement of Deewan Ali (P.W. 8), father of the deceased, who appeared to testify the recovery of bloodstained clay P.5, crime empty P. 4 and licence No. 5649 of 12 bore gun. In the cross-examination he stated that he was not at home at the time of occurrence but various portions of his statement were made target by the learned counsel -for the respondents as well as by the Trial Court. Deewan Ali is 70 years old, father of the deceased, whose son in prime youth was murdered, who was just married.
In such state of affairs the mental capacity of an old man can well be judged and such portions of his statement may be ignored which does not ring true in the light of the other evidence of the prosecution and because of the reason the entire evidence of the prosecution cannot be discarded. The maxim 'falsus in uno falsus in omni-bus' has since long been ignored by the Superior Courts, therefore, the ocular version can not be rejected because of the evidence of Deewan Ali (P.W. 8). In support of this view a fresh judgment of Apex Court of Azad Jammu and Kashmir titled Zahir Hussain Shah v. Shah Nawaz and others recorded on 30.6.1999 can be referred.
24. From the above mentioned case law it follows that where the evidence of eye-witnesses is clear, cogent and convincing, conviction in law can be recorded or\ such evidence alone without further corroboration but in the instant case the ocular version is amply supported by the circumstantial evidence.
25. The defence has half-heartedly tried to prove the plea of 'alibi' about Muhammad Ajaib accused but miserably failed. Muhammad Sulaman (D.W. 1) happens to be brother-in-law of Muhammad Ajaib-accused who did not mention the fact of absence of Muhammad Ajaib accused from the scene of occurrence disring the investigation of the case. As far as the case law referred by the learned counsel for the respondents is concerned can not be applied to the instant case because of the distinguishable facts.
26. The prosecution story is manifestly proved by the evidence of five eye-witnesses amongst Muhammad Kabir (P.W. 2) and Muhammad Hussain (P.W. 3) are independent persons who had no malice and animus to falsely implicate the accused with the commission of crime and sufficient corroborative evidence is available in support of ocular version. The time and place of occurrence, the presence of eye-witnesses as well as of the accused is undisputed. The presence of Muhammad Ajaib accused also stands proved. The medical evidence, presence of bloodstained clay, its recovery from the site of occurrence and the recovery of clothes of the deceased also support the prosecution story.
27. In view of the above stated corroborative and confirmatory evidence I am satisfied that the eye-witnesses so far as Muhammad Ajaib accused is concerned, are telling truth and there is nothing on record to caste doubt in their deposition. The recovery of 12 bore gun P. 6 at the pointation of the accused and a crime empty P. 4 of 12 bore gun P. 6 alongwith licence of the father of the accused-respondent from his house, is a further corroborative piece of evidence.
28. From the above analyses it appears that the Trial Court acted illegally while acquitting Muhammad Ajaib respondent-accused. He is therefore found guilty of the offence of the murder of Zahid deceased. At the same time I am convinced that because of the details of the case and the ocular version produced by the prosecution do not fulfil the standard and the requirement of evidence needed in cases of 'Qisas' but the offence of murder liable to 'Tazeer' has been amply proved by the prosecution. I therefore accept the appeal of appellant-complainant by setting aside the impugned judgment of the Trial Court, convict Muhammad Ajaib respondent-accused for committing the offence of murder liable to 'Tazeer by awarding him the sentence of life imprisonment and fine in sum of Rs. 50,000/- under section 3 read with Section 24 of Islamic Penal Laws Act, 1974. In case of non-payment of fine he will further undergo a sentence of six months simple imprisonment. The fine, if realised from the convict- respondent, shall be paid to the legal heirs of the deceased.
29. I have also considered the benefit of Section 382-B of Cr.P.C, but I do not find any cogent reason to extend the concession in favour of the accused. In the light of the peculiar facts and attending circumstances of the case where a young man of 24 years was brutally murdered without provocation the convict had no justification for acting so savagely because of an altercation between his cousin Khalida Bi and Zahid, deceased. In this view of the matter I am not inclined to allow benefit of Section 382-B, Cr.P.C, to the convict. The convict-respondent shall be taken into custody and sent to prison.
30. I have also taken into the consideration the mitigating circumstances for not awarding the capital punishment to the convict because the convict-respondent was acquitted by the Trial Court and thus, he had an expectancy of life. The prosecution evidence has not been believed with regard to the other accused Fazal Ellahi, Tasib, Muhammad Akram and Muhammad Naib.
31. As far as the case of the respondents Fazal Ellahi, Tasib, Muhammad Naib and Muhammad Akram is concerned, the benefit of doubt given to them by the Trial Court appears to be based on cogent reasons and I up-hold the same as the prosecution failed to above its case against them beyond any reasonable doubt. The reason being that the above mentioned respondent?-accused did not inflict any injury to the deceased and they were also found injured. The appeal, therefore, tiled by the complainant against these respondents-accused fails.