' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the Shariat Court, dated 24-7-2000, whereby the appeal filed by Muhammad Hanif, appellant herein, was dismissed while that of complainant was partly accepted and sentence of "Qisas" was also awarded to Muhammad Yusuf, appellant, herein.
2. Capt. Hussain Khan, ' respondent No, 2 lodged an F.I.R. On 29-10-1986 alleging that land measuring about 6/7 Kanals, situate in Village Kuian/Chotagala, was in the ownership of Muhammad Akbar and others, sons of Muhammad Din who happens to be blacksmith by profession. They had migrated to Rawalpindi, Pakistan, some 40/50 years ago and their land fell in the possession of Muhammad Hanif and others, accused-appellants. Consequently, the original owners appointed Muhammad Tufail, deceased, as their attorney so as to pursue the civil suit on their behalf in the Court of Sub-Judge, Rawalakot. The suit filed by Muhammad. Akbar and others in which Muhammad Tufail, deceased, was acted as their Mukhtar was decreed in their favour by the Sub-Judge, Rawalakot. The.Judgment and decree of the Sub-Judge were assailed by filing an appeal by the accused-appellants which was subjudice when the present occurrence took place.
However, according to the complainant party they had sown wheat about 1-1/2 months prior to the present incident in which Muhammad Tufail and Said Akbar from the complainant party were murdered. It has been alleged that on 29-10-1986, at about 9-00 a.m., the accused-persons, Dilawar Khan, Muhammad Khan, Muhammad Hanif sons of Azeemullah aiongwith Muhammad Yusuf son of Dilawar Khan, residents of Chotagala started ploughing the land in dispute for sowing wheat in the same. According to the F.I.R., Muhammad Tufail son of Dost Muhammad, Said Akbar son of Sardar Mast Khan, Muhammad Akram son of Ali Muhammad and Capt. Hussain Khan, complainant proceeded towards the land in dispute and when they reached at some distance from the same, Muhammad Hanif, appellant herein, fired at Muhammad Tufail, deceased, with .12 bore gun which hit him at his abdomen and he fell down; thereafter, Muhammad Khan (now dead) also fired at Muhammad Tufail, which also hit him at his abdomen; Muhammad Yusuf, appellant, fired with .12 bore gun at Said Akbar which hit him on the left side of abdomen and he also fell on the ground; Dilawar Khan (now dean) fired with .12 bore gun at Farooq Hussain which resulted in any injury to his left finger; an injury was also caused with pellet to the right little finger of the complainant. Capt. Hussain Khan. Muhammad Tufail and Said Akbar died on the spot. It was further alleged in the F.I.R. That the deceased Muhammad Tufail and Said Akbar, who were related as maternal-uncle and nephew, were prosecuting the civil case on behalf of Muhammad Akbar and others, blacksmiths, and thus, the accused party nursed a grudge against them and was after their lives so as to wreak the vengeance upon them. On this report, a case under sections 5/15 of the Islamic Penal Laws Act read with sections 307/334, A.P.C., was registered at Police Station, Rawalakot. The District Criminal Court, after trial, convicted and sentenced Muhammad Hanif to death for committing murder of Muhammad Tufail while Muhammad Yusuf, appellant herein, was convicted and sentenced to ten years' rigorous imprisonment for committing murder of Said Akbar; Muhammad Khan, accused, was given benefit of doubt and acquitted while Dilawar Khan, accused, had died during the trial and the proceedings against him were declared to have abated.
Muhammad Hand and Muhammad Yusuf filed appeal against their conviction and sentence to the Shariat Court while Capt. Hussain Khan, complainant, filed an appeal for setting aside the acquittal of Muhammad Khan, and seeking enhancement of punishment awarded to Muhammad Yusuf, appellant herein. A reference was also sent to the Shariat Court for confirming the death penalty awarded to Muhammad Hanif, appellant herein. The appeals and reference were disposed of by the Shariat Court through a consolidated judgment whereby the appeal filed by Muhammad Hanif and Muhammad Yusuf, appellants, herein, was dismissed while that of Capt. Hussain Khan, complainant, was partly accepted and the sentence awarded to Muhammad Yusuf, appellant herein, was enhanced and he was awarded punishment of "Qisas" and he was also awarded two months' rigorous imprisonment under section 447, A.P.C., for committing criminal trespass into the disputed land. Muhammad Khan, acquitted accused, died during the pendency of appeal; the Shariat Court has maintained his acquittal. It is against the aforesaid judgment of the Shariat Court that present appeal has been filed.
3. Sardar Sayab Khalid, Advocate the learned counsel for the appellants, has argued that in the instant case the F.I.R. Is doubtful. He has maintained that it is evident from the prosecution story that one son of Muhammad Akram was sent to Police Station Rawalakot, for lodging the F.I.R. But the F.I.R. Exh.P.A., is purported to have been based on the statement of Capt. Hussain Khan which was recorded at the spot by the police after reaching there on the telephonic message which was given to it. The learned counsel has argued that in fact the present F.I.R. Was a statement under section 161, Cr.P.C., and the telephonic message which was allegedly given by someone at Police Station Rawalakot, is the F.I.R., the learned counsel has maintained that when, according to the prosecution witnesses, one son of Muhammad Akram was sent to lodge the F.I.R. At police station, then there was hardly any necessity to communicate about the incident by a telephonic message.
He has also submitted that there is nothing on the record to show as to whether any F.I.R. Was lodged by the said son of Muhammad Akram who was sent to the police station or not. Thus, according to the learned counsel for the appellants, the F.I.R., Exh.P.A., is not admissible in evidence because the same is based on the statement of Capt. Hussain Khan which was recorded by the police after reaching the place of occurrence.
4. In reply, Sardar Tahir Anwar, Advocate, the learned counsel for the complainant, has contended that a telephonic message cannot be regarded as an F.I.R. In the case. He has maintained that the F.I.R. Must show that a cognizable offence has been committed and, at least, it must indicate the manner in which offence was committed or some other details. He has contended that if any information was passed through telephone to Police Station Rawalakot, that an incident which resulted in the murders in Village Kuian, would not constitute the F.I.R. As envisaged under section 154, Cr.P.C. The learned counsel has cited some authorities in support of the aforesaid view.
5. After giving due consideration to the matter, we are of the opinion that the contention of the learned counsel for the appellant that Exh.P.A. Is not an F.I.R. And that the same should be said as a statement under section 161, Cr.P.C. Is not tenable because it is a well-settled principle of law that ambiguous telephonic message cannot be regarded as an F.I.R.; if the police reaches on the spot on an ambiguous information, it may collect the details of incident and treat the same as an F.I.R.
In the case. Therefore, the contention of the learned counsel for the appellant that the F.I.R. In the present case is inadmissible as being a statement under section 161, Cr.P.C.IA is repelled.
6. Next, it has been contended by the learned counsel for the appellants that a private complaint was filed by Muhammad Hand, one of the appellants, in the District Criminal Court on 24-12-1986 but no proceedings have been taken in the same. He has drawn our attention to the interim orders which show that the complaint was filed on 24-12-1986 and thereafter, the orders have been passed by the Court that the same should be put up alongwith the challan case. No further proceedings have been taken in the same till now. The learned counsel has argued that both the cases should have been tried side by side and the disposal of the challan case without , taking any proceedings in the complainant is illegal. Thus, according to the learned counsel, the impugned judgments of the Courts below should be quashed and the case should be remanded to the trial Court for deciding the same after completing the proceedings in the said complaint, lodged by one of the appellants, herein. The point was also argued before the Shariat Court but the same was repelled on the ground that the appellant lodged the aforesaid complaint but subsequently, he did not pursue the same. Thus, his contention that the judgments of the Courts below should be quashed and the case should be remanded till the proceedings in the private complaint are completed was repelled by the Shariat Court.
7. We have given due consideration to the contention of the learned counsel for the appellants. The learned counsel has referred to a case reported as Ghulam Haider v. The State PLD 1965 SC 196, in which injuries were caused to both the sides and cross-challans against each of the rival parties were filed in the competent Court. The Supreme Court while hearing appeal in one of the cases, observed that one party was acquitted while other was convicted. It was contended that sudden fight had flared up between the rival parties resulting in the injuries and death to both the parties.
Thus, it was held that each of the accused persons should be punished for his act. There was no question involved as to whether a private complaint and challan case be tried and decided simultaneously or not. Thus, the said authority has no relevancy to the present case. It may be observed that even in cross-cases, the evidence recorded in one case does not, ipso facto, become evidence in other case; the accused party has to bring on record the material favourable to it in defence on the relevant file. In the instant case, the accused-appellants were given an opportunity to lead defence evidence but they did not adduce the same. Therefore, it cannot be said that any prejudice was caused to them merely because no proceedings were taken in the complaint filed by one of the appellants. Even if the trial Court would have issued the process to the accused persons in the private complaint and recorded the evidence, that would not be read as defence evidence in the instant case until and unless concerned witnesses were examined as defence witnesses in the present case. Therefore, we are unable to agree with the learned counsel for the appellants that as ,no proceedings were taken in the private complaint, the judgments in the present case stand vitiated.
8. Sardar Sayab Khalid, the learned counsel for the appellants, has further argued that the injury sheets and the inquest reports of the injured and deceased persons have not been proved and exhibited by the prosecution, which lend support to his contention that in fact the F.I.R. In the case was concocted after the preliminary investigation at the spot. He has further contended that the report of Forensic Expert has been neither exhibited nor put to the accused persons while examining them under section 342, Cr.P.C. And, thus, the said report cannot be read as evidence against the accused-appellants.
9. We have given due consideration to the arguments advanced. The failure to exhibit or prove the injury sheets and inquest reports is not fatal to the prosecution case, especially so when the post- mortem report has been duly proved by examining the concerned doctor. We have already repelled the contention of the learned counsel for the appellants that the F.I.R. In the case is in fact the statement under section 161, Cr.P.C., and, thus, cannot be treated as an F.I.R. Therefore, the mere fact that the inquest report and the injury-sheets were not proved, does not lend support to the contention of the learned counsel for the appellants that the F.I.R. Was concocted in view of the fact that the said reports were not exhibited by the prosecution due to oversight.
10. So far as proving the report of Forensic Expert is concerned, it may be observed that it is not necessary to prove that report by producing the author of the same in view of the relevant provisions of the Code of Criminal Procedure. Similarly, the question of exhibiting the report does not mean that the same cannot be read as an evidence against the accused, especially so when it has been read as evidence by the Courts below. The learned counsel for the appellants is also not correct that the Forensic Expert's Report should have been put to the accused-appellants while examining them under section 342, Cr.P.C., because a specific question has been put to them that they had fired with .12 bore guns recovered from them on Muhammad Tufail and Said Akbar, deceased, which resulted in their death.It may be pointed out that the statement under section 342, Cr.P.C., is not a cross-examination of an accused person in a criminal case; section 342. Cr.P.C., stipulates that only salient features of the prosecution case and incriminating circumstances are to be put to him to give him an opportunity to explain the same. Thus, failure to put the questions regarding the Forensic Expert or the Chemical Expert's Reports to the appellants did not prejudice them.
11. The learned counsel for the appellants has further submitted that if we consider the injuries caused to Muhammad Tufail and Said Akbar in view of the site plan prepared by the Patwari, the prosecution case becomes doubtful because the said injuries cannot be caused from the direction and the points which have been shown in the site plan; he has further submitted that the injuries found on the bodies of Muhammad Tufail and Said Akbar, deceased, appear to have been caused from different directions which support the version of the defence that the deceased were injured by the firing of the members of their own party who, according to the learned counsel for the appellants, had encircled the accused party and fired at them from different directions. On the above premises, the learned counsel has further argued that the Shariat Court has committed an error in holding that the medical evidence corroborates the statements of the eye-witnesses whereas the said evidence contradicts the ocular evidence.
12. We have given due consideration to the contentions of the learned counsel for the appellants. It may be observed here that .We are unable to subscribe to the aforesaid analysis made by the learned counsel for the appellants. It may be stated that taking into consideration the number of members of the complainant party and the accused party, and the fact that firing has been attributed with .12 bore guns to at least three persons, it cannot be said that the prosecution evidence is belied on the ground that certain injuries cannot be caused from a particular point. It may be pointed out that in the incidents like the present one, the complainant party or the accused party is not expected to stay at a particular point throughout the incident. It is natural that as long as the occurrence continues and firing goes on, the members of the parties do change their positions and do not remain standing at the particular spots throughout the incident.
Therefore, the contention of the learned counsel for the appellants that the prosecution story is belied by the circumstantial evidence, indicated above, is not tenable and is rejected.
13. It has been further argued by the learned counsel for the appellants that the eye-witnesses are not only related to Muhammad Tufail and Said Akbar, deceased, but they are inimical to the accused persons due to the dispute over the land, which gave rise to the present incident. The learned counsel has stressed that it is also the case of the prosecution that the parties are inimical to each other. Thus, the learned counsel has vehemently argued that strong corroboration of the statements of the eye-witnesses was required in this case but according to him there is no corroborative evidence at all. He has contended that in a criminal case, the prosecution is bound to prove its case beyond reasonable doubt and if it fails to do so, the accused persons are entitled to acquittal; he has particularly emphasized that this was a daylight incident and no independent witness has been produced by the prosecution to corroborate the statements of the eye- witnesses. The learned counsel has further submitted that in the, instant case, according to the injury-sheets brought on the record by the prosecution, Dilawar Khan, accused, (now dead) had four injuries on his person which were stated to have been caused during the incident as a result of {{URDU TEXT}} between the rival factions. He has further submitted that the prosecution has got Dilawar Khan medically examined and according to. The medical report, he sustained four injuries with a sharp-edged weapon, one of them being of serious nature. He has submitted that none of the eye-witnesses gave any explanation as to how he was injured. He has contended that the aforesaid fact further makes the testimony of the eye-witnesses doubtful and requires the independent corroboration of their statements because they suppressed the material fact which goes in favour of defence. The learned counsel has cited some authorities in support of the proposition that if the eye-witnesses are related and interested, the independent corroboration of their testimony is necessary for proving the prosecution case.
14. In reply the learned counsel for the complainant has controverted the arguments advanced on behalf of the appellants. He has contended that the mere relationship is no ground for disbelieving the statement of a witness. He has further submitted that if the witnesses are found straightforward and their testimony rings true, the corroboration of their statements is not necessary even if they are inimical to the accused persons. He has submitted that both the Courts below have concurrently found that the testimony of the eye-witnesses rings true; and that if at all the corroboration of their testimony was required, that is available on the record in form of medical report, recoveries of the weapon of offence, i.e, guns from the appellants, the empties of the cartridges and the Reports of Forensic Expert according to which the empties of the cartridges, one seized from the spot and the other recovered from the chamber of the gun which was produced by Muhammad Yusuf, accused-appellant, were fired respectively from the guns recovered from them.
Thus, the learned counsel has argued that there is sufficient corroboration of the statements of the eye-witnesses, especially so when Capt. Hussain Khan, complainant, and Muhammad Farooq, P.W., were also injured in the incident by the pellets. The learned counsel has also cited some authorities in support of the view that it is not necessary that corroboration should be insisted in all cases if the prosecution witnesses are inimical and related to the complainant party.
15. After giving due consideration to the arguments raised, it may be observed that whether the corroboration of related and inimical witnesses is necessary in a criminal case and if so to what extent, depends upon the circumstances of each case; no hard and fast rule can be laid down in that regard. However, as an abundant caution, the corroboration of related and inimical witnesses is generally required by the Courts of law. But the question as to nature and quantum of such corroboration would depend upon the circumstances of the case. As we have already seen, in the instant case, the rival parties are in agreement on some of the features of the case, i.e,, about the dispute and litigation over the land which resulted in the present occurrence and the pendency of appeal filed by the accused party. However, their versions vary as to who was in possession of the land in dispute on the date of occurrence and which of the parties was aggressor. Thus, in the circumstances of the instant case, the corroboration is amply furnished by the recoveries of the weapons of offence from the accused-appellants coupled with the fact that according to the Forensic Expert's Report, the aforesaid two empties of cartridges were fired from the guns which were recovered from the accused-appellants. The contention of the learned counsel for the appellants that the recovery of the guns, especially from Muhammad Yusuf, accused-appellant, is doubtful and, thus, the Report of Forensic Expert does not corroborate the prosecution story so far as the said accused is concerned, is not tenable for the simple reason, as has been pointed out by the Shariat Court, that the discrepancies in the statements of the recovery witnesses are I of minor nature and same do not falsify the material portions of the statements of the recovery witnesses, namely, Abid Hussain and Haveldar Muhammad Yaqoob, that in fact the gun in question was recovered at the instance of Muhammad Yusuf, accused-appellant. So far as the gun recovered from Muhammad Hanif, accused-appellant, is concerned, the same is a licensed gun and there is no material discrepancy in the statements of the recovery witnesses, namely, Muhammad Akram and Said Muhammad. Thus, we are of the opinion that the testimony of the eye-witnesses in the case is corroborated in the material particulars.
16. The next question which needs resolution is as to whether Dilawar Khan, accused, (now dead) was injured in the incident as alleged by the accused-appellants. It may be stated that the injury- sheet and the medical report of Dilawar Khan have been placed on the record by the prosecution.
Though the said medical report and the injury-sheet have not been proved by the defence yet the fact remains that after placing the said documents on record, the prosecution cannot deny that Dilawar Khan, accused, was not injured in the incident by the complainant party, especially so when there is evidence on the record that he remained in hospital for about two months after his arrest. However, it is not ascertainable as to who from the complainant party caused injuries to him and at what stage of the incident; the injuries were caused by sharp-edged weapon according to medical report; whether the injuries to Dilawar Khan were caused after the accused-appellants had fired at the deceased persons or before that. It may be pointed out that the right of self- defence of person or property arises when danger to person or property becomes eminent and remains available as long as such danger exists. Therefore, the time factor is important for ascertaining as to whether the accused-appellants could be given right of self-defence of the person of Dilawar Khan, accused, or not. The District Criminal Court has come to the conclusion that Dilawar Khan, accused; was driving the bullocks and was ploughing the land for sowing the wheat when someone from the complainant party cut the strings of the yoke by a sharp-edged weapon and also inflicted injuries to Dilawar Khan, accused. For convenience the relevant extract from the judgment of the District Criminal Court is reproduced as under:-- {{URDU TEXT}}
17. It is evident from the above that the District Criminal Court was not definite as to who from the complainant party gave injuries to Dilawar Khan and at what stage. However, the fact remains that we are of the considered opinion that those injuries cannot be regarded to have been caused as a result of {{URDU TEXT}} as has been held by the District Criminal Court. In view of the nature of the injuries and the location of the same on the body of Dilawar Khan, same were not a result of mere {{URDU TEXT}} but were caused by someone from the complainant party to prevent Dilawar Khan, accused, from ploughing the land by cutting the strings of the yoke so as to release the bullocks and frustrate the effort of the accused party to sow the wheat in the land in dispute. However, it is not shown that the accused-appellants fired at Muhammad Tufail and Said Akbar in defence of Dilawar Khan and, thus, they acted in exercise of self-defence.
18. The next question which needs to be resolved is as to whether the complainant party came at the spot armed with guns and swords and started firing on the accused persons. This assertion on behalf of the accused-appellants has no substance for the simple reason that none of the members of the accused party sustained injury by fire-arm; as stated above, only Dilawar Khan, accused sustained injuries by a sharp-edged weapon. The truth appears to be, as has been held by the Courts below, that the disputed land has been in possession of the accused party for more than 40/50 years; the suit for possession in which Muhammad Tufail, deceased, acted as attorney for the owners was decreed in their favour. Subsequently, the accused persons filed appeal before the District Judge and a stay order was also issued against the complainant party not to interfere in the possession of the accused party but on that stay order it was reported by Muhammad Tufail that he had already taken the possession of the land which was decreed in favour of the blacksmiths for whom he acted as their attorney. According to the F.I.R., the complainant party had sown wheat about 1-1/2 months prior to the incident. Obviously, the land had been in possession of the accused-appellants for more than 40/50 years and merely isolated incident of sowing wheat on a small portion of the land in dispute by the complainant party does not imply that the complainant party was in the settled possession of the same; this was merely an act of criminal trespass on the part of complainant party. It hardly needs any authority or detail discussion that after the decree for possession in favour of owners, the possession could be delivered only through the execution of decree and could not be taken by force. In this case, the isolated instance of sowing wheat in a portion of land in dispute by the complainant party was an unlawful act; it did not deprive the accused party of the possession of the land. Thus, when the accused persons started ploughing the land on the date of occurrence, the complainant party was not justified to prevent the accused party from doing so. Therefore, it cannot be said that when the complainant party put up resistance to the accused party, they were protecting their so-called possession.
Besides, the fact as to whether Muhammad Tufail, deceased, in fact had sown wheat after the decision of the Sub-Judge is also doubtful as is evident from the following observation of the District Criminal Court:- {{URDU TEXT}}
19. It is evident from the above extract that in fact the complainant party was not in the possession of the land and was not justified to put up active resistance to the accused-appellants from ploughing the land which had been in their possession for a period of 40/50 years and they had also appealed to the District Judge who had issued the stay order in their favour.
20. However, the accused-appellants, were not justified to kill Muhammad Tufail and Said Akbar, deceased, merely because they stubbornly resisted them to sow wheat in the land in dispute. Thus, the act of the accused-appellants neither falls within the ambit of self-defence of the property nor person. Therefore, we are of the opinion that it were the complainant party which went on the spot to put up resistance to the accused-appellants from sowing wheat without any legal justification.
21. The learned counsel for the appellants has argued that Muhammad Yusuf, accused-appellant, was given expectancy of life by the trial Court and, thus, the Shariat Court was not justified in awarding him death sentence. He has cited some authorities in support of his contention that after life expectancy to an accused person, normally the capital punishment is not awarded. It may be observed that the view that capital punishment cannot be given after the life expectancy or protracted trial has not been followed by the superior Courts of Pakistan and Azad Kashmir in the recent past despite the fact that some earlier judicial authorities were of the view that life expectancy and protracted trial were good grounds for not awarding capital punishment. A reference may be made to a case reported as Muhammad Mumtaz Hussain v. Muhammad Rashid 2001 PCr.LJ 225 in support of the view.
22. We have considered the question as to whether in the circumstances of the instant case, the capital punishment awarded to the appellants, herein, was justified and we are of the opinion that there are mitigating circumstances in favour of the appellants which do not justify to award them punishment of death; the following facts weighed with us for awarding the lesser penalty:--
(i) That the property in dispute has been in possession of the accused-appellants almost for 40/50 years;
(ii) that they had lodged an appeal to the District Judge against the judgment and decree passed by the Sub-Judge in which a stay order was also issued in their favour but despite that the complainant party put up resistance to restrain the accused party from ploughing the land;
(iii) that the complainant party instead of waiting the decision by the appellate Courts or getting the possession by executing the decree passed in favour of the owners, took the law in their hands and forcibly trespassed into the land about 1-1/2 months prior to the occurrence according to their version; and
(iv) that Dilawar Khan, one of the accused persons, was inflicted injuries with sharp-edged weapon by the complainant party but his injuries were not explained by the prosecution.
' We are supported in our view for giving lesser penalty by the authorities reported as Ghulam. Ali v.
Rasab PLD 1983 SC 135 and Muhammad Ishaq v. The State PLD 951 Lah.
244.
23. It may be observed that the trial Court did not convict and sentence Muhammad Yusuf, accused-appellant, under section 447, A.P.C. However, the Shariat Court convicted and sentenced him under section 447, A.P.C., to two months' rigorous imprisonment. In view of the fact that the act of the complainant party prior to the occurrence was tantamount to criminal trespass, it cannot be said that Muhammad Yusuf committed criminal trespass.
24. In the light of what has been stated above, we partly accept the appeal, amend the judgment of the Shariat Court and award sentence of 25 years' rigorous imprisonment to each of the appellants under section 5 read with section 3 of the Islamic Penal Laws Act; the conviction and sentence awarded to Muhammad Yusuf, appellant, under section 447, A.P.C. Is also set aside. The appellants shall be entitled to benefit under section 382-B of Cr. P.C.