' MUHAMMAD YUNUS SURAKHVI, J.--- The above titled both the appeals are directed against a common judgment passed by the Shariat Court of Azad Jammu and Kashmir on 26-7-1999 announced on 2-8-1999. Appeal No,19 of 1999 was filed by Muhammad Ajaib, convict-appellant herein, for setting aside his conviction order, whereby he was found guilty of offence of murder of Zahid Hussain, deceased, and sentenced to life imprisonment and a fine of Rs,50,000 and Appeal No,21 of 1999 was filed by the State for setting aside the acquittal order passed in favour of respondents Nos.2 to 5 by the trial Court and upheld by the Shariat Court for recording conviction of respondents Nos.2 to 5 and awarding death penalty to respondent No,1, Muhammad Ajaib. As both the appeals have arisen out of a common judgment, therefore, we propose to dispose them of by a single judgment.
2. The necessary facts, giving rise to the prosecution case, are that Mehboob Khan alias Maroof lodged a written report before Officer Incharge of Police Post Nar, on 8th of March, 1992, at 1-30 p.m.
Wherein it was alleged that at about 11 a.m. Complainant alongwith Muhammad Yusuf, Zahid Hussain (deceased), Kabir, Najeeb, Muhammad Yasin and Muhammad Yunus, was busy in the construction of a road. A tractor deployed by them for bringing stones to be used for the soling of the road all of a sudden struck with a Palahi tree belonging to accused Fazal Elahi upon which Mst.
Khalida Bi, daughter of Fazal Elahi, protested against the damage allegedly caused to the tree. In her view the complainant party purposely and deliberately struck. Their tractor with the tree in order to widen the road under construction. She left for her home to inform her father and brothers.
At 11 a.m. When the complainant and his associates were on their way to Jarahi Bazar, near the house of Muhammad Yusuf, after finishing the work, the convict-appellant Muhammad Ajaib, armed with a .12 bore gun, and the other accused Muhammad Akram and Muhammad Naib with sticks while Tasib Hussain and Fazal Elahi carrying hatchets appeared at the scene of occurrence.
They obstructed the complainant party and made an assault upon them. Zahid Hussain, deceased, asked the accused to refrain from abusing them upon which Muhammad Ajaib convict-appellant fired at Zahid Hussain with his .12 bore gun which resulted in his instantaneous death. The complainant is also stated to have received injuries at the hands of the accused.
3. The motive behind the said occurrence is stated to be that the accused entertained the belief and took it for granted that the complainant and his other associates while constructing the road wanted to pull down the Palahi tree belonging to accused Fazal Elahi so that the road might be widened and for this very reason the accused committed the alleged offences. On the report lodged by complainant a case under section 5/15, Islamic Penal Laws Act read with sections 341, 147, 148, 149 and 341, A.P.C. Was registered at Police Station Kotli against the appellant and 4 others on 8-3-1992. During the investigation the accused were apprehended by the police. On 11-3-1992 a .12 bore gun was recovered at the instance of accused Muhammad Ajaib vide recovery memo.
Exh.P.H. In presence of Muhammad Arif, P.W.9, and Muhammad Latif, P.W.10. A licence No,5649 of .12 bore gun, produced by Muhammad Afsar, the father of convict-appellant, was taken into possession vide recovery memo. Exh.P.F. In presence of Diwan Ali (P.W.8) and Ch. Qurban Hussain (P.W.12). The post-mortem of the body of the deceased was conducted by Dr. Muhammad Iqbal Chaudhry who handed over a parcel of pallets, which were recovered during post-mortem vide recovery memo. Exh.P.L. In presence of Muhammad Musharaf Hussain, Head Constable of Police.
Except Muhammad Ajaib, convict-appellant, all the accused were found injured during the occurrence and their injury sheets were also prepared by the police. The reports of Chemical Examiner and that of the Serologist Exhs.P.Z./1 and P.Z./2 were also obtained by the police. The accused after completion of the investigation were forwarded to the District Court of Criminal Jurisdiction, Kotli for facing their trial. The accused in their statements under section 242, Cr.P.C.
Denied the allegations levelled against them.
4. The prosecution in order to prove its case against the convict-appellant and other respondents examined Mehboob Khan alias Maroof (P.W.1), Muhammad Kabir (P.W.2), Muhammad Hussain (P.W.3), Muhammad Yusuf (P.W.4), Muhammad Yasin (P.W.6), Diwan 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 Hand Constable (P.W.16), Musharaf Hussain Shah, Head Constable Police (P.W.19), Muhammad Bashir Constable Police (P.W.20), Muhammad Ajaib, selection grade Constable Police (P.W.21), Muhammad Musa Khan, Sub-Inspector Police (P.W.22), Ch. Azhar Akhtar, Inspector Police (P.W.23) and Raja Abdul Razaq, Inspector Police (P.W.24). The convict-appellant and other accused in their statements under section 342, Cr.P.C. Denied the incriminating pieces of evidence of the prosecution put to them and expressed their desire to lead the defence. The accused produced Muhammad Suleman (D.W.1), Muhammad. Yasin (D.W.2) and Dr. Tasleem Ahmed (D.W.3) as the defence witnesses.
5. The District Criminal Court after the conclusion of trial acquitted the appellant and the other accused as they were not found guilty by it and they were extended the benefit of doubt vide its judgment, dated 13-6-1997. However, before the pronouncement of the judgment of the trial Court accused respondent Muhammad Akram after the conclusion of trial absconded and as such he was proceeded under section 512, Cr.P.C. On 21-5-1996. On appeal preferred by complainant Mehboob Khan before the Shariat Court, it vide the impugned judgment, dated 26-7-1999 announced on 2-8-1999, convicted Muhammad Ajaib, appellant herein, for the commission of offence of murder of Zahid Hussain deceased, and awarded him the sentence of life imprisonment and a fine of Rs,50,000 while the acquittal order recorded in favour of accused respondents, who are enlisted as respondents Nos.2 to 5 in the appeal filed by the State, was upheld. Hence these appeals, as said earlier, one filed by the appellant Muhammad Ajaib for setting aside his conviction and the other by the State for enhancement of sentence of respondent No,1 Muhammad Ajaib, and for the conviction of respondents Nos.2 to 5.
6. Arguing the case on behalf of convict-appellant Muhammad Ajaib and respondents 1 to 5 in the counter-appeal, it was vehemently contended by Mr. Sher Zaman Chaudhry, the learned counsel, that the prosecution miserably failed to bring guilt home to the convict-appellant as well as the accused/respondents. The learned counsel urged that the F.I.R. Was lodged at Police Post Nar after a considerable delay as the cot of deceased, according to the prosecution version, remained at Jarahi Bazar for one and a half hours for which the prosecution has furnished no reasonable explanation. The learned counsel submitted that the delay having not been explained by the prosecution a reasonable inference would be that the accused were substituted and as such they were falsely implicated in the case. The learned counsel pressed into service the submission that the eye-witnesses were closely related to the deceased and inimical to the accused as such the witnesses being interested their evidence was not worthy of any credence. The learned counsel contended that the Shariat Court fell in error by observing that the defence version put forth by the accused as compared to the prosecution version was not probable and natural and the same could not be proved by the defence, whereas according to him it is always the duty of the prosecution to prove its case against the accused persons beyond any reasonable shadow of doubt. The learned counsel contended that the so-called link road was not in existence at the time of incident rather the complainant party was forcibly constructing the road from the land of the accused persons. Thus, the complainant party was aggressor who, with hatchets and sticks, injured the accused respondents Nos.2 to 5 on vital parts of their bodies. The learned counsel submitted that the accused Fazal Elahi sustained four injuries out of them two were caused on parietal region. Muhammad Akram accused was inflicted five injuries out of which three were incised wounds. Muhammad Naib sustained two injuries and one of them was caused on the parietal region. Likewise accused Tasib Hussain was also injured and both the injuries sustained by him were grievous in nature. Thus, the number and seats of injuries sustained by the accused were of such a nature that it could be easily inferred that the complainant party was the aggressor and not the accused. The learned counsel strenuously argued that if there be two possibilities open upon evidence, the possibility favourable to the accused' must be accepted. The learned counsel vehemently urged that investigation was conducted by Muhammad Musa Khan, Sub-Inspector Police, dishonestly and it was a case of glaring misuse of his powers. He had been waiting for the complainant party to get their case registered against the accused despite the fact that accused reached the police post much earlier than the first informant. The learned counsel urged that Muhammad Musa Khan, the Investigating Officer, is guilty of manufacturing fake and false evidence, as such no credibility could be given to the investigation conducted by him. The learned counsel seriously disputed the recovery effected from convict-appellant, as, according to him, the recovery of a .12 bore gun from the convict-appellant was totally doubtful and mutually destructive as deposed by the recovery witnesses. The learned counsel vehemently urged that the ocular version of prosecution was not compatible with the medical evidence as the post-mortem report showed that the fire was made from a very close range. The pallets were found from the dead body alongwith the card wad which lends support that the fire was made from a very close distance. The learned counsel argued that it does not appeal to a prudent man that after firing one shot the convict-appellant Muhammad Ajaib remained mum when his uncle, brothers and close relatives were grievously injured from the complainant's side. Had it been the convict-appellant he would not have spared the complainant party who inflicted grievous injuries on the vital part of the bodies of some of the accused persons and simple injuries on the person of other accused. Thus, it was maintained by the learned counsel that the appellant was enroped in a false case. The prosecution, according to the learned counsel, suppressed the injuries on the persons of the accused and the same were not disclosed either in the F.I.R. Or in the statements under section 161, Cr.P.C. Of the eye-witnesses, but when the accused reached the police post in an injured condition the Investigating Officer had no alternative but to get them medically examined and it was afterwards that the prosecution changed its version by saying that when the complainant party snatched the weapons of offence from the accused in that struggle the accused sustained injuries.
The learned counsel contended that the nature and number of injuries received by the accused reflected very seriously upon the story of the prosecution and in any case if there is any doubt as to who initiated the attack, its benefit must go to the accused but the Shariat Court failed to attend to this aspect of the case in its true and logical perspective. The learned counsel submitted that the Shariat Court fell in error by observing that once the trial Court reached the conclusion that the eye-witnesses were found Aadil in their purgation, later on, it erroneously observed that there were material contradictions in their testimony which go to the root of the case of the prosecution and as such the accused were entitled to the benefit of doubt. The learned counsel maintained that if this had been the position then in no case the acquittal order could have been recorded. The learned counsel pointed out that it is only after the conclusion of the trial that the appreciation of evidence is made in accordance with the settled judicial manner and after that it is resolved as to whether the eye-witnesses stood the test of cross-examination and were worthy of any credence.
7. Controverting the arguments raised by the learned counsel for the appellant, Mr. Abdul Majid Mallick, the learned counsel for the complainant, submitted that the prosecution case stood proved against the accused-appellant and other respondents beyond any reasonable shadow of doubt. The learned counsel argued that even the trial Court observed in the operative part of its judgment that the allegation of wilful murder of deceased attributed to appellant Muhammad Ajaib was proved by the testimony of eyewitnesses but illegally acquitted him and others by extending them the benefit of doubt. The learned counsel submitted that the occurrence took place at the place which was unequivocally stated by the complainant in the F.I.R. Near the house of Muhammad Yusuf, while going to Jarahi Bazar. In fact according to the learned counsel the link road was already in existence and on the fateful day of occurrence the complainant party made some repairs upon which altercation took place between Mst. Khalida Bi, daughter of accused Fazal Elahi and the deceased. Mst. Khalida Bi went home and in consequence of her telling the incident to appellant and the other accused an attack was launched on deceased and Muhammad Yasin. The learned counsel strenuously argued that the accused by forming an unlawful assembly launched an attack on the deceased and murdered Zahid Hussain and caused injuries to the complainant. The learned counsel submitted that the mere fact that the appellant did not resort to firing upon any other member of the complainant party would not detract him from his culpability for the commission of offence of murder. The learned counsel emphasised that the mere relationship of eye-witnesses inter se and with the deceased was not itself sufficient to discard their testimony. The learned counsel also contended that some of the eye-witnesses might have some sort of grouse against the accused but because of this reason the eye-witnesses account could not be disbelieved particularly in respect of convict-appellant and would also not justify the acquittal of accused respondents. The learned counsel submitted that the distance between the assailant and victim has been reasonably explained by the eye-witnesses. However, the witnesses were not expected to account for the distance in a mathematical way. The learned counsel contended that there was no error or defect in the investigation conducted by Muhammad Musa Khan, the Investigating Officer, on the other hand, he discharged his duty in a lawful manner and after completion of investigation challaned the accused who in his investigation were held responsible for committing the offence of murder and murderous assault.
The learned counsel emphasised that it was natural on the part of accused to have attacked the complainant party who entertained the belief that the complainant and his companions were busy in widening the road and while doing so damaged a tree of Palahi belonging to the accused. It was for this reason that the accused flared up and initiated an attack on the complainant and his other companions. The learned counsel submitted that when the offence of murder was proved against the accused appellant he should not have been awarded the lesser penalty. The learned counsel also contended that the place of occurrence is though owned by accused Fazal Elahi but it is a common passage used by the villagers, therefore, there was no room for the argument that the accused had any right of their self-defence or defence of property. By explaining the injuries on the person of the accused it was submitted by the learned counsel for the complainant that the injuries received by the accused were simple in nature and the same could have been caused by a scuffle which took place between the accused and the associates of complainant at the time of snatching the weapons. So far as the injuries sustained by accused Tasib Hussain are concerned, the examining Officer, Dr. Tasleem Ahmed, failed to mention the duration of injury which could have possibly linked the complainant party. Thus, in the opinion of the learned counsel for the complainant it were the accused who initiated the attack and committed a daylight murder and made a murderous assault on the person of complainant.
8. Ch. Muhammad Mushtaq, the learned Additional Advocate-General, appearing on behalf of the State, fully supported the arguments advanced by the learned counsel for the complainant.
9. After hearing the learned counsel for the parties and perusing the record, the first point that needs resolution by this Court is as to whether the F.I.R. In the case was lodged after a considerable delay which has not been satisfactorily explained by the prosecution and the same has seriously prejudiced the case of the defence. It would be suffice to point out that the occurrence took place at 11 a.m. Whereas the F.I.R. Was lodged at Police Post Nar, at 1-30 p.m. From the evidence of P.W.
Mehboob Khan, complainant, it came on record that the dead body of the deceased had been lying at Jarahi Bazar for one or one and half hours. On the strength of the aforesaid deposition the learned counsel for the appellant strenuously argued that the prosecution failed to explain as to why the cot carrying the dead body had been lying at Jarahi Bazar for one or one and half hours. It may be stated that a considerable time might have been consumed while taking the dead body of the deceased from his home to Jarahi Bazar. The woman whose husband was murdered, the other womenfolk from the village and the relatives of the deceased could not be expected to allow to take the body of the deceased immediately to the police post for lodging the F.I.R. Moreover, in an atmosphere of grief and mourning which resulted from the murder must have been a factor for lately taking the body to police post. So far as the time spent at Jarahi Bazar is concerned, people might have assembled for seeing and mourning the deceased and considerable time must have also been spent in getting the application written, which was ultimately lodged at Police Post Nar.
Mehboob Khan was not cross-examined by the defence on the point as to for what purpose the cot of deceased had been lying in Jarahi Bazar for one or one and a half hours. Had Mehboob Khan been confronted with the situation he must have explained the purpose. For which the dead body had been lying in Jarahi Bazar. It may also be pointed out that mere delay in the lodgement of F.I.R.
Is never fatal for the prosecution in absence of any allegation of substitution or concoction which is wanting in the case. Therefore, in our view taken by the Shariat Court is correct and must be upheld.
10. Now coming to the merits of the case, it may be stated that the prosecution case is supported by ocular version of five eye-witnesses who are unanimous on the point that the deceased Zahid Hussain was killed by a .12 bore gun fire of Muhammad Ajaib which hit him and resultantly he fell down and succumbed to the injury. The prosecution version briefly stated is that on the 'day of occurrence the accused assaulted the complainant and his companions after being armed with .12 bore gun, hatchets and sticks. Zahid Hussain deceased admonished the accused to refrain from abusing upon which Muhammad Ajaib made a fire from his .12 bore gun from a distance of five Kurams (approximately 27 feet) which hit upon the chest of deceased and he succumbed to the injury. The accused attacked the complainant and his other associates with hatchets and sticks which were snatched away by the complainant party and as a result of scuffle the accused were also injured. After careful appraisal of evidence of eye-witnesses we have reached the conclusion that the place of occurrence is precisely the same as alleged by the prosecution in the F.I.R. The trial Court fell in error in observing that the occurrence took place where the road was being repaired/constructed by the complainant party. The occurrence, as alleged by the prosecution, took place near the house of Muhammad Yusuf, which is approximately 400/500 yards away from the place where the road was being repaired. The eye-witnesses though closely related to each other and to the deceased are clear and positive on the point that Zahid Hussain was murdered by a shot of .12 bore gun made by the convict-appellant Muhammad Ajaib. The presence of convict- appellant Muhammad Ajaib at the scene of occurrence was not seriously disputed by the defence.
Although it was suggested to the eye-witnesses at the time of their cross-examination that in fact the deceased was done to death by the shot of one Banaras who wanted to hit upon Muhammad Akram but accidentally and inadvertently Zahid Hussain deceased came under his target, nevertheless all these suggestions were denied by the eye-witnesses. So far as the presence of convict-appellant Muhammad Ajaib at the place of occurrence is concerned that has not seriously been disputed by the defence. From the trend of cross-examination made upon the eye-witnesses by the defence it reveals that no such suggestion was made to the witnesses that Muhammad Ajaib, convict-appellant, did not participate in the commission of the offence. The eye-witnesses, as said earlier, though inter se related and also related to the deceased had no such animosity so as to falsely implicate or substitute the convict-appellant in the commission of offence of murder in place of some other culprit. It is also true that some of the eye-witnesses were not having good relations with deceased but at the same time those were not so strained that in place of real culprit they would have substituted or enroped the convict-appellant. Mehboob Khan, P.W., is real brother of deceased while Muhammad Yusuf, P.W.4, and Muhammad Yasin, P.W.6, apart form being related to the deceased are also closely related to the accused. Thus, the contention of the learned counsel for the appellant cannot be accepted as true that since Muhammad Kabir and Muhammad Hussain were inimical to the accused, therefore, their testimony could not be relied upon. The non-participation of accused persons in the marriage ceremony of Zahid Hussain, the existence of previous litigation of Muhammad Hussain, P.W.3, and Muhammad Afsar, the father of accused Fazal Elahi, is not by itself sufficient to establish that the P.Ws. Were interested to enrope the accused. It was humanly impossible for the eye-witnesses to involve an innocent person in the case of murder instead of real culprit. It may also be observed that in respect of interested witnesses there is no rule of law that their testimony cannot be relied upon without corroboration, if otherwise it seems to be natural, convincing and truthful. However, as a matter of prudence the Courts insist upon some corroborative or confirmatory piece of evidence. The mere fact that the evidence of eye-witnesses has been disbelieved in respect of rest of the accused, the entire evidence cannot be discarded. The grain has to the sifted out of the chaff. When the main part of the deposition of eye-witnesses is true, it should not be rejected because of want of veracity on some minor parts. Therefore, when a witness is stated to have given a false evidence to implicate some innocent person besides the real culprit, the whole deposition may not be rejected when the most of the evidence which rings true can be legally relied upon. Our aforesaid view finds support from a reported case titled Muhammad Sharif v. The State PLD 1978 SC (AJK) 146.
11. It, therefore, follows that where ocular evidence is reliable and satisfactory conviction in law can be recorded on such evidence without any corroboration, but in the instant case the ocular version gets further support from the other confirmatory evidence to which we will be adverting to at a later stage.
12. The rule that statement of interested witnesses should be corroborated does not mean that statement of witnesses is false or untrue. What it really means is that to accept it as wholly true it is desirable that it should have a confirmatory support. In fact when it is said that the statement of a witness needs corroboration to support it, this finding precedes on the basis that version of P.Ws..Is prima facie correct but by way of precaution it needs corroboration to attain clarity.
13. In the case in hand the ocular version of eye-witnesses is fully supported by the fact of recovery of a .12 bore crime empty from the place of occurrence and the blood-stained clay. It is further corroborated by the recovery of .12 bore gun at the instance of convict-appellant in presence of P.Ws. Muhammad Latif and Muhammad Arif. Similarly the recovery of blood-stained clothes of deceased is also in the nature of corroborative evidence. Another important corroborative piece of evidence brought on record by the prosecution is that Dr. Muhammad Iqbal Chaudhry, who conducted the autopsy of the deceased, testified the fact that the weapon used by the accused for the commission of offence was a shot gun, the fire from which resulted into the death of deceased instantaneously. All the above factors are in the nature of corroborative evidence connecting the convict-appellant with the commission of offence of murder.
14. The place of occurrence has not been seriously disputed by the defence while cross-examining the prosecution witnesses. In their testimony the eye-witnesses have unequivocally deposed that the occurrence took place near the house of Muhammad Yusuf which was 400/500 yards away from the place where the road was being constructed. Even the presence of the eyewitnesses was not seriously disputed by the defence; rather the trend of cross-examination suggests that the presence of eye-witnesses was admitted by the defence. The defence did not try to suggest to the witnesses that in fact convict-appellant Muhammad Ajaib was not present on the day of occurrence and did not participate in the commission of offence. What in fact has been suggested by the defence to the eye-witnesses is that it was one Banaras who wanted to hit Muhammad Akram accused by a .12 bore gun which accidentally hit the deceased. Thus, the death of deceased was caused by the fire of .12 bore gun. Though the defence case seems to be that it was not the convict-appellant but one Banaras, who was responsible for the murder of the deceased, but from the perusal of evidence of eye-witnesses there is not an iota of evidence brought on record either from the prosecution or from the defence side to the effect that the convict-appellant did not participate in the occurrence. The contention of the learned counsel for the convict-appellant is that had the convict-appellant participated in the commission of offence he would not have kept mum while his brothers uncle and other close relative's were grievously injured by the complainant party. The aforesaid hypothesis cannot be accepted as correct. It has rightly been observed by the Shariat Court that after doing a criminal act an accused person may not opt for another criminal act. What is in the mind of a particular accused is known best to him and cannot be adjudged or smelled by these who see the occurrence. Moreover the action and act of an accused may differ from person to person. In absence of any material on record we cannot subscribe to the view that if convict-appellant had participated in the commission of offence of murder he would not have spared the associates of complainant party who were busy in injuring the accused during the fight.
15. It seems to be no more the case of the defence that the occurrence took place due to construction of the link road. On the other hand there is bulk of evidence-on the record that the occurrence did not take place on the road which was being widened. The case of the defence seems to be that the complainant and his other companions were cutting the tree belonging to accused Fazal Elahi and as a result of the said damage they admonished the accused which resulted into a fight between the parties.
16. The case of defence also seems to be not of a self-defence or defence of property. Had it been the case of defence the learned counsel for the appellant and the accused-respondents in the counter-appeal must have argued the same before us. The case of defence precisely seems to be of a total denial and in the alternate by suggesting that in fact the deceased was done to death by one Banaras. Obviously the point of self-defence and defence of property could not have been taken by the learned counsel for the defence as the deceased was admittedly empty-handed and at the time of occurrence he was even not alleged to have provoked or abused the complainant party. On the other hand the convict-appellant was armed with .12 bore gun. Thus, the necessary requirements for using the right of self-defence and defence of property would not have arisen in the circumstances of the case. The exception of right of self-defence and 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. In the present case the convict-appellant was in possession of a .12 bore gun, whereas the deceased was admittedly empty-handed. The deceased is not alleged to have caused any injury either to the accused or to any other member of the accused party. Therefore, under no circumstances the accused had a right of self-defence or defence of his property. The aforementioned fact has been narrated just to show that the trial Court erroneously observed that the convict-appellant had the right of self-defence and defence of his property in the circumstances of the case.
17. The learned counsel for the appellant contended with all the emphasis at his command that the medico-legal evidence brought on record by the prosecution does not corroborate the ocular version of the eyewitnesses. On the other hand the medical evidence is in total conflict with the ocular version. According to the learned counsel for the appellant it was not possible for the appellant-assailant to do away with the life of the deceased from such a distance as was alleged by the eye-witnesses. According to the site plan Exh.P.M. The distance between the assailant and victim is shown as five Kurams which approximately comes down to twenty-seven and half feet but in the post-mortem report Exh.P.J. The distance of firing is shown as 75 to 130 c.m.
(approximately five feet). The learned counsel for the appellant vehemently urged that the cardwad and the pallets were recovered from the body of the deceased. This suggests that in fact the victim was attacked from a very close range. Dr. Muhammad Iqbal Chaudhry, P.W.14, who conducted the post-mortem on the dead body of the deceased, when. Appeared as a witness stated in the Court that the distance of firing described by him in post-mortem report Exh.P.J. Is not conclusive but the same in tentative. Mehboob Khan, P.W., who witnessed the occurrence from the distance of 60 feet was not cross-examined by the defence as to what was the distance between the assailant and victim at the time of occurrence. Muhammad Kabir, P.W.2, deposed before the Court that convict-appellant Muhammad Ajaib fired at the deceased from the distance of about 5 to 6 yards. Muhammad Hussain P.W.3, also stated that Muhammad Ajaib fired at deceased from the distance of about 4 to 5 yards and he was standing at the distance of 20 to 25 yards from the deceased. Muhammad Yusuf, P.W.4, claimed that at the time of firing he was at the distance of 60 to 70 yards from the scene of occurrence while deceased was at the distance of about three and half yards from Muhammad Ajaib. Similarly Muhammad Yasin, P.W.6, who claimed to have witnessed the occurrence from a very close range and was standing three or four yards away from Muhammad Ajaib while Zahid Hussain, deceased, was at the distance of 2 to 3 yards from the accused. This witness further stated that when accused encircled the complainant and his other companions he was not in a position to exactly locate the distance due to stampede. As observed by the Shariat Court the prosecution witnesses have explained their distances from the accused but if they failed to exactly pin-point the actual distance between the assailant and the victim it is but natural that the simple villagers are not supposed to explain the distances exactly. It may also be pointed out that the prosecution case cannot be thrown out on the basis of small and minor discrepancies, contradictions and improvements which are a natural phenomenon. What has to be seen is as to whether the prosecution story stood proved in its material particulars or not. If the story of the prosecution stands substantiated on material particulars, the minor discrepancies, contradictions, and improvements are to be ignored. In presence of ocular account of the eyewitnesses, site plan and other discrepancies can hardly be regarded as a substantive piece of evidence. Therefore, the Shariat Court was right in not drawing any adverse inference against the prosecution.
18. We have given our earnest consideration to the point that in presence of pallets and cardwad in the body of deceased it becomes apparent that the firing was made from very close range but we are of the opinion that when the pallets enter in the body of a human being, they create their own directions. In the instant case it stood proved that the deceased was murdered by a .12 bore gun fire who after receiving the injury fell down and died instantaneously. Therefore, the medico-legal evidence in our view corroborates the material particulars of the prosecution version. The expert's evidence, may. It be medical or that of Ballistic. Expert, is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence, but if there is direct evidence as in the instant case which is definite, trustworthy, the confirmatory evidence is not of much significance. In any case, it cannot outweigh the direct evidence. In the case in hand, as said earlier, the ocular version of eye-witnesses stands corroborated by the medical evidence as well as the evidence of Ballistic Expert and the report of Serologist so far as the convict-appellant is concerned.
19. The motive as set up by the prosecution fully supports its version that when the tractor struck with the tree of 'Palahi' belonging to accused, Fazal Elahi, an altercation took place between Mst.
Khalida Bi, daughter of Fazal Elahi, and Zahid Hussain, deceased. Mst. Khalida Bi after abusing the complainant and his associates went back to narrate the untoward incident to the accused who got infuriated as a result of which the occurrence took place. We have also noticed from the perusal of the evidence of eye-witnesses that on the narration of incident by Mst. Khalida Bi, the accused whosoever heard about the incident of damaging the tree flared up and came on the scene of occurrence without any preconcert or predomination. Thus, everyone of the accused will be responsible for his individual Act and they cannot be saddled with a common intention to do away with the life of the deceased.
20. We have also noticed that the accused also received the injuries at the place of occurrence from the hands of complainant party and in this regard the observation of Shariat Court cannot be accepted as correct that the injuries to the accused were self-inflicted or were caused at the time of weapons of offence were snatched by the complainant party and in that scuffle or struggle some injuries were caused to the accused persons. The aforesaid contention of the learned counsel for the complainant as well as the learned Additional Advocate-General is not tenable for the simple reason that the nature and number of injuries caused on the persons of accused are not of a type which could be either self-inflicted or have been caused during the scuffle between the complainant party and the accused. We have also noted that particularly the incised wounds caused on the person of Muhammad Akram accused and the grievous injury inflicted on the person of Tasib Hussain accused could not have been caused by self-infliction or as a result of scuffle between the complainant and the accused party. The above-stated factor has taken us to the conclusion that the accused were injured in the one and same incident and it was probably for this very reason that the accused respondents Nos.2 to 5 were acquitted by the trial Court and their acquittal order was upheld by the Shariat Court. Therefore, we are of the opinion, as said earlier, that every accused was responsible for his individual act and all of them could not be saddled with the responsibility of common intention and could not be held responsible for the vital injury caused by the convict-appellant Muhammad Ajaib on the person of Zahid Hussain deceased.
21. We have also taken into consideration the defence version. When both the prosecution and the defence versions are considered in a juxtaposition the version of the prosecution seems to be more probable, natural and truthfully in so far as the convict-appellant is concerned. The trial Court in our view did not determine the guilt of the accused on the totality of the legal evidence available on the file. It is well- established rule governing the administration of criminal justice that the evidence should not be considered in isolation and whole of it should be taken into consideration.
No doubt the witnesses of occurrence are related to each other and to the deceased and some of them are to some extent inimical to the accused but their testimony is not only consistent, trustworthy but inspires confidence.
22. From the above analysis the convict-appellant Muhammad Ajaib is found guilty of offence of murder of Zahid Hussain deceased. However, it has rightly been pointed out by the Shariat Court that the ocular version of the prosecution does not fulfil the standard and requirement of evidence needed in the cases of Qisas, but the offence of murder liable to Tazeer has been amply proved by the prosecution. Thus, the sentence of life imprisonment and fine in the sum of Rs,50,000 under section 3 read with section 24 of the Islamic Penal Laws Act was rightly awarded to the convict- appellant. The appeal, thus, filed by the convict-appellant stands rejected.
23. We have also carefully examined the mitigating circumstances for not awarding the death penalty to the convict-appellant and are of the opinion that in the circumstances of the case the sentence of life imprisonment will meet the ends of justice. The convict-appellant was acquitted by the trial Court and, thus, he had an expectancy of life. The prosecution evidence was rightly not believed with regard to other accused Fazal Elahi, Tasib Hussain, Muhammad Akram and Muhammad Naib.
24. So far as the case of respondents Fazal Elahi, Tasib Hussain, Muhammad Akram and Muhammad Naib is concerned, the benefit of doubt extended to them by the trial Court and upheld by the Shariat Court appears to be based on cogent reasons and we uphold the same. The prosecution failed to prove its case against accused-respondents Nos.2 to 5 beyond any reasonable shadow of doubt. These accused-respondents did not inflict any injury to the deceased and they were also found injured during the incident. The appeal, thus, filed by the State against these accused also fails. Consequently, both the appeals stand dismissed in the manner indicated above.