1. ' Brief facts forming the background of the present appeal are that a case under section 302, A.P.C.
2. Was registered at Police Station, Bhimber on the written application of the complainant Haji Muhammad Sharif father of the deceased who is the owner of Kashmir Tobacco Factory. It is stated in the application that at times he stays in his factory to look after the administrative matters. On 18-4-1996 at 10-00 p.m. His son Muhammad Yaseen Sahrif left for home in his Ford Pick-up. At 10-30 p.m. The complainant received a message from Zulfiqar, A.S.-I. Incharge of the Police Petrol Party that his son Muhammad Yasin Sharif who was seriously injured and unconscious was lying in the driving seat of his vehicle near Maghlura cross. Upon this the complainant came at the place of occurrence and saw the dead body of his son lying in a pool of blood in the driving seat. It is alleged in the application that some unknown persons have killed his son with firearms weapon.
3. ' After the occurrence the Investigating Officer came at the place of occurrence and found vehicle AJK D-59 parked at the left side of the road.
4. ' The dead body lying in pool of blood was present in it. The engine of vehicle was running and the head lights were on. The front and back seats were stained with blood. Two crime empties were found on the mats of the front side. Two more crime empties were found just to the front of the back door. After taking the vehicle into custody the Police seized all the abovementioned blood- stained articles and the crime empties through the recovery memo. Exh.P.B. The dead body was taken to the Hospital through the inquest report Exh.P.H. The doctor who conducted the post- mortem found five fire-arm injuries on the person of deceased. The injuries according to the post- mortem report Exh.P.G. Are as under:--
(1) 1/4" circular wound on top of the scalp blackening and burning of hair present diverted downward (entrance wound).
(2) 2.1" wound on right side of neck (at the middle) just anterior to the sterno cicidomestoid muscle.
5. (Exit No,1 injury).
(3) Fire-arm injury 1/2" x 1/2" on front of neck is missing.
(4) J/4" circular fire-arm injury on right thigh at the junction of middle and lower one thick (entrance) diverted posteriorly and down-wound.
(5) 1/3" oval shaped wound on back of right thigh 2" below the above injury (Exit. Injury No,4).
6. ' The doctor is of the opinion that the deceased received bullet, injuries. Injury No,1 resulted in complete loss of brain function death. Death caused by fire-arm/bullet injury. The time between injury and death is within thirty minutes whereas the time between death and post-mortem is 8 to 12 hours.
7. ' The police arrested Muhammad Ishaq the accused on 21-4-1996 and a blood-stained Parna was recovered from him through the recovery memo. Exh.P.D. The weapon of the offence blood-stained 30 bore pistol was recovered at the instance of the accused on 23-4-1996 in presence of Raja Muhammad Sagheer Khan and Raja Muhammad Farooq through the recovery memo. Exh.P.E. Site plan Exh.P.MM. Including the explanatory note was prepared on 29-5-1996. The blood-stained articles were sent to the Chemical Examiner. The report of the Chemical Examiner is Exh.P.K. The alleged weapon of offence was also sent to the arms expert. The report of arms expert is Exh.P.E.
8. Apart from the abovementioned the report of Serologist is also attached with the file and it is present at the page No,72 of the trial Court's file. During the investigation Muhammad Salim son of Nazir Ahmed, Fazal Karim son of Karam Elahi and Muhammad Iqbal son of Fazal Karim were also arrested by the Police. After investigation they were handed over to the District Court of Criminal Jurisdiction, Bhimber to face the trial for the alleged offence through Challan No,62, dated 3-7- 1996. Sections 109/34, A.P.C. And 13/20/65, A.A. Were also added at the time of submission of the challan. Muhammad Saleem the accused absconded during the trial. He was proceeded under section 512, Cr.P.C. The prosecution examined 17 witnesses in support of its case. The convict- appellant Muhammad Ishaq was examined under section 342, Cr.P.C. On,4-12-1998. He pleaded not guilty and expressed his ignorance about the occurrence. Muhammad Iqbal and Fazal Karim were not examined under the said section because in view of the trial Court the prosecution evidence to their extgnt was not sufficient for the purpose. After considering all the relevant facts the trial Court arrived at the conclusion that the prosecution has succeeded in establishing its case against Muhammad Ishaq and convicted him under section 302, A.P.C. And awarded him 15 years' rigorous imprisonment. He was also given the benefit under section 382-B, Cr.P.C.
9. ' This order of the trial Court is impugned before this Court through both the above-titled appeals.
10. Appeal No,8 of 1999, dated 1-3-1999 has been filed by the complainant to enhance the sentence whereas Appeal No,14 of 1999, dated 17-6-1999 has been tiled to challenge the Correctness and legality of the impugned judgment and to acquit the convict-appellant. The prosecution story as believed by the trial Court briefly stated is that the deceased and his father came back from Mirpur in their factory at 6.00 p.m. On the date of occurrence. On the main gate of the factory the complainant inquired from Abdul Majeed the gunman about any visitor. The reply was that some distributors have come from Lahore to see the complainant. He further told that Muhammad Ishaq (an employee of the factory) and his nephew Muhammad Saleem have also come to see the deceased. Upon this the deceased went inside the factory. After some time seeing the complainant busy with the distributor the deceased went to Muhammad Ishaq and Muhammad Saleem as they were waiting for him in the room of Muhammad Ishaq. All three of them stayed in the room for some time and had the dinner together. At about 10-00 p.m. Muhammad Ishaq and Muhammad Saleem left the factory. Abdul Majeed Gunman was present at the gate at the time when they crossed the main gate. A few minutes later the deceased Muhammad Yasin also left the factory in his double cabin pick-up and informed the gate keeper to tell the complainant that he has taken the meal and now after having his vehicle refueled at the tilling station he will go home.
11. After giving the message, the deceased crossed the gate and left the factory and came at Shakar Filling Station from where he got his vehicle refueled. Two persons were also sitting in the vehicle at the time and they were seen by Hay Nawaz an employee of the filling station. Lastly the deceased was stopped by' the police at Bharing Check Post in the company of two others while crossing the check post Muhammad Altaf Constable No,1188 who was present on his duty asked the deceased about his companions. The answer was that the person sitting in the front seat is a trustworthy employee of his factory and his name is Muhammad Ishaq. Whereas the person sitting in, the back seat is the nephew of Muhammad Ishaq and his name is Muhammad Saleem. Some times after crossing Bharing Check Post the deceased Muhammad Yasin was found injured in his vehicle near Maghpura cross by the police. Later on, he succumbed to the injuries.
12. I have examined the record in light of the arguments advanced by the learned counsel for the parties with great cafe. A perusal of the record shows that the time and place of Occurrence is not disputed in the case. F.I.R. Exh.P.M. Which was promptly lodged is a genuine document. The presence of the deceased and convict appellant in the factory is also not disputed. It is evident from the record that the deceased and the convict-appellant alongwith Muhammad Saleem left the factory at the alleged time. P.W. Abdul Majeed has successfully established the fact that both the deceased and the convict-appellant left the factory premises at the alleged time. He was cross-examined at length but a single question to create a doubt about the presence of the convict-appellant and the deceased in the factory or about their leaving the factory at the relevant time has not been asked. Not even suggestion has been given to this witness about the abovementioned. The P.W. Faced the cross-examination successfully and the-defence failed to achieve anything positive in favour of the convict-appellant. In view of this, I am unable to persuade myself to agree with the learned counsel for the convict-appellant on the point that this witness should be disbelieved on the sole ground that he is an employee of the complainant's factory.
13. ' The next contention of the learned counsel is that the prosecution has failed to prove all the links of the case. In this context he has referred to the statement of hostile witness Haq Nawaz who saw the deceased in the company of two others at Shakar Filling Station. This witness appeared before the Court on 13-8-1998. His statement is present on page 92 of the trial Court's file. He has stated in his statement that "I am employed as Cashier at Shakar Filling Station owned by Sabir Hussain. On 18-4-1996 at about half past ten Vehicle No, AJK D-59 came at the filling station for refueling Raja Muhammad Yasin owner of the Tobacco Factory was driving the vehicle while two other unknown persons were also sitting with him: Next morning I came to know that Raja Muhammad Yasin has been murdered on the same night". At this stage the public prosecutor declared him as hostile witness. It is clear from the above assertion of the hostile witness that he supports the prosecution version to this extent that the deceased in the company of two unknown persons came at the filling station. It is established principle that evidence of a hostile witness cannot be outrightly thrown out.
14. The portion which rings true and appears to be truthful can be used in favour of the prosecution version. This view gets support from .a case titled Muhammad Niaz Khan v. The State 2001 MLD 1419.
15. It has been held by the Supreme Court that "we are not oblivious of the fact that in a criminal case the evidence of a hostile witness is not to be discarded as a whole merely because that witness has turned hostile. The law on the subject stand settled that those portions of the evidence of hostile witness which ring true can be used in support of the prosecution case. The real test is as to whether in some portions of the evidence of hostile witness he speaks truth with regard to some events or not and if a hostile witness . Highlights some features of the occurrence which ring true those could be easily relied upon in support of the prosecution".
16. ' This witness has supported the statement of the complainant and P.W. Abdul Majeed 'regarding the fact that the deceased left a message before leaving the factory that he will go home after refueling the vehicle from the filling station. The next important piece of the prosecution evidence is the statement of P.W. Muhammad Altaf, Constable No, 1181 who talked to the deceased and asked about the identification of the companions. His statement is present on page 91- of the trial Court's file. He identified the convict-appellant during his statement as the person who was sitting in the front seat of the vehicle alongwith the deceased before the occurrence. He was cross-examined at length but the defence failed to achieve. Anything positive out of his statement which would have given some sort of benefit to the convict-appellant.The P.W stood on the touchstone of the cross examination and succeeded in establishing the tact that the convict-appellant was present in the vehicle on the alleged date and time before the occurrence. The next contention of the counsel for the convict-appellant is that the recovery of the weapon of offence is highly doubtful on the grounds that no witness of the locality has been cited by the police and one of the recovery witnesses namely Raja Muhammad Saghir has been declared hostile. The recovery of the weapon of offence was effected from the convict-appellant through recovery memo. Exh.P.E. On 23-4-1996 contention of the learned counsel to disbelieve the recovery of the weapon of offence merits' no consideration. It is important to note that the weapon of offence with the crime empties was sent to the Forensic. Science Laboratory, Lahore. The report of the Forensic Science Laboratory is present of page 59 of the trial Court's file. The report shows that the,crime empty C-2 was fired from the pistol .30 bore marked as P.2 which has been recovered from the convict-appellant.
17. ' Another contention of the learned counsel is that the recovery of blood-stained Parna is also doubtful because the same was recovered from the convict-appellant 3 days after the occurrence and it cannot be believed that a person who commits an offence can carry a proof with him for such a long time specially when he had the opportunity and time to destroy it. A perusal of the record shows that it is not the case of defence that the said Parna was not in use of the convict- appellant. The reason that why the convict-appellant did not destroy the same may be best known to him. It is evident from the record that the police seized the blood-stained Parna at the blood- stained at the time of recovery were sent to the Serologist alongwith stained Puna' and the weapon of offence pistol .30 bore which was also time they arrested the convict-appellant. It is worth mentioning that blood other articles. The report of the Serologist is present on page 32 of the trial Court's file. This report shows that all the articles including pistol and Pama were stained with human blood. This shows that the weapon of offence pistol 30 bore and the Parna were blood- stained during the occurrence and it is very strong corroboration of the prosecution version.
18. ' In light of what has been stated above I am of the view that the prosecution has succeeded' to prove all the links of the circumstantial evidence and the trial Court has rightly convicted the, accused by observing that the 'prosecution has proved its case against the convict-appellant beyond any reasonable doubt. This brings me to the quantum of sentence. The trial Court while awarding the punishment of 15 years' rigorous imprisonment has committed a legal error. The observation of the trial Court that the proof .In either, of the forms specified in section 304, A.P.C. Is not available in the case is correct, but in such-like situations where the said proof is not available an accused person can be convicted under subsection (b) to the section '302, A.P.C. Subsection (b) to the section 302 envisages as under:- ' Punishment with death or imprisonment for life as Tazeer having regard to the facts and circumstances of the case if the proof in either of the forms specified in section 304, A.P.C. Is not available."
19. Thus, it becomes clear that if an accused person cannot be awarded the sentence of Qisas on the grounds of the proof as required by section 304 of the A.P.C., he shall be convicted under subsection (b) to the section 302, A.P.C. And subsection (b) provides only two kinds of punishments either death or imprisonment for life as Tazeer having regard to the facts and circumstances of the case.
20. ' As it is mentioned earlier the prosecution has succeeded in establishing its case but there are mitigating circumstances in favour of the convict-appellant such as the motive in the case is shrouded in mystery and in the circumstances the possibility cannot be ruled that something might have happened between the deceased and the convict-appellant and the co-accused. In view of this it is not expedient to award him the capital punishment.
21. ' In light of the facts listed above I am of the view that the imprisonment for life alongwith benefit of section 382-B, Cr.P.C. In the circumstances of the case is sufficient to meet the ends of justice.
22. ' The upshot of the above discussion is that appeal filed by the convict-appellant is dismissed whereas appeal filed by complainant Muhammad Sharif is accepted in the terms indicated above.