' The abovementioned appeal and reference are outcome of a judgment of 'the District Criminal Court, Kotli, dated 13-8-1999, whereby Namat Ullah, accused/ appellant No,1 was convicted and sentenced to "Qisas" alongwith imprisonment for four years, four months and seven days as "Tazeer", whereas Fazal Dad, accused/ appellant No,2 was convicted and sentenced to fourteen years imprisonment.
2. The brief facts of the case are that on oral F.I.R. Was lodged at Police Station, Khuiratta by Muhammad Hafeez (P. W. 1), on 5-4-1995 at 7-00 p.m. Alleging that Zubair, deceased, was his nephew who was under his supervision whereas Namat Ullah and Fazal Dad, accused are also his close relatives and neighbours. Namat Ullah knew the fact that Zubair has developed illicit relations with his sister Mst. Kausar. Fazal Dad, uncle of Namat Ullah called a meeting of "Panchayat" in the house of Namat Ulfah where he and Zubair were also invited. The respectable of the "Panchayat" tried to satisfy Namat Ullah and his uncle Fazal Dad, but of no avail. Namat Ullah openly declared in the "Panchayat" that he will not allow Zubair to go alive but on the intervention of respectables of "Panchayat", dispute was resolved. The notables of the "Panchayat" remained seated in the house of Namat Ullah. On the advise of Rakhmat Ullah, Zubair went to his house. When Zubair reached on the back side of the house of Namat Ullah at about 6-00 p.m., Namat Ullah and Fazal Dad chased him and launched an attack upon him with an intention to do away with his life, Fazal Dad, accused, inflicted injuries on the person of Zubair with a stick whereas Namat Ullah caused injuries with a knife on the left side of his chest and head, Zubair fell down upon the earth and the blood starting oozing. The occurrence was stated to be witnessed by Muhammad Hanif, complainant, Muhammad Latif son of Faiz Tallab, Rekhmat Ullah son of Rehmat Ullah, Muhammad Akbar and respectables of the "Panchayat".
3. The motive of offence is stated that accused were under impression that the deceased had developed illicit relations with Mst. Kausar, sister of Namat Ullah, accused.
4. Muhammad Hanif (P.W.1) went and lodged an oral report at Police Station, Khuiratta which was recorded by Muhammad Nawaz Khan, A.S.I., Police (P.W.16), who registered the case Exh.P.A/II, under sections 307 and 34, A.P.C. Read with section 15 of Islamic Penal Laws (Enforcement) Act, 1974. On the same day Zubair succumbed to his injuries, therefore, the offences under sections 307, A.P.C.
And 151, P.L. Were deleted and an offence under section 5, I.P.L. Was added. Muhammad Nawaz, A.S.I., went on the spot and prepared inquest report Exh.P.F. He also prepared an injury form of the deceased Exh.P.E. And took into possession the grass and blood-stained clay Exh.P.1 from the place of occurrence vide recovery memo. Exh.P.A.A. In presence of Haji Muhammad Ilyas (P.W.8) and Rehmat Ullah alias Rehmi (P.W.9). On that very night, Shabbir Ahmed S.I. (P.W.17), S.H.O., Police Station Khuiratta took over the investigation of the case from Muhammad Nawaz Khan, A.S.I. On the next day, he sent the dead body for post-mortem. After postmortem, the clothing of the deceased, Shirt and Shalwar were taken into possession vide recovery memo. Exh.P.B. In presence of Muhammad Hanif (P.W.1) and Rehmat Ullah alias Rehmi (P.W.9). On that very day, the accused were apprehended by Shabbir Ahmed on the same day "Churri" Exh.P.2 was recovered and taken into possession on the pointation of Namat Ullah accused vide recovery memo. Exh.P.BB, in the presence of Haji Muhammad Ilyas (P.W.8) and Rehmat Ullah alias Rehmi (P.W.9). On the pointation of Fazal Dad, accused, a stick P-3 was also recovered and taken into possession on 6-4-1995 vide recovery memo. Exh.P.CC in the presence of abovementioned P.Ws. He also got prepared the site- plan Exh.P.D. By Muhammad Ishaq Patwari (P.W.10) on that very day. The statements of eye- witnesses Muhammad Latif (P.W.2), Rekhmat Ullah son of Rehmat Ullah (P.W.3), Muhammad Akbar (P.W.4) and Inayat Ullah (P.W.5) were recorded on the same day. Whereas the statement of Muhammad Hafeez (P.W.6) was recorded on 7-4-1995. He also obtained report of Chemical Examiner.
5. According to the post-mortem report Exh.P.D., prepared by Dr. Muhammad Farid (P.W.11) revealed the following injuries on the person of the deceased:--
(a) Stab wound 3 x 2 c.m. On the left chest anteriorly at acardiac area penetrating pleura, left lung and heart;
(b) Incised wound 4 x 2 c.m. On left mastoid region.
(c) Incised wound 3 x 2 c.m. And 1 c.m. Deep on left leg near knee joint laterally.
(d) Multiple bruises on chest anteriorly and posteriorly and on thigh anteriorly and posteriorly as well.
6. Accordingly to his opinion cause of death was stab wound on left Chest (Cardiac area) by which chest wall, left pleura, lingualla of left lung pericardium and heart were stabbed which led to excessive haemorrage and then shock to death.
7. After completion of the investigation, the appellants/accused were sent up for the trial where the prosecution relied upon the ocular testimony of Muhammad Hanif (P.W.1), Muhammad Latif (P.W.2), Rekhmat Ullah son of Rehmat Ullah (P.W.3), Muhammad Akbar son of Allah Ditta (P.W.4), Muhammad Hafiz (P.W.6), the evidence of recovery of bloodstained gross and earth P-1 recovered from the place of occurrence, the recovery of "Churri" P-2, the recovery of stick P.3, Medical Evidence and the evidence of motive. At the trial, the accused denied the recovery of "Churri" and stick and submitted that they were falsely implicated on account of enmity. Muhammad Ayyub and. Muhammad Iqbal, witnesses were produced by the accused/appellants in their defence. The District Criminal Court vide its judgment dated 13-8-1999, convicted and awarded Namat Ullah, accused, the sentence of "Qisas" with/imprisonment to four years four months and seven days as "Tazeer" while Fazal Dad, accused was sentenced to life imprisonment up to fourteen years and it was also ordered that his period of detention from 6-4-1995 to 13-8-1999, shall be deducted from the sentence awarded to him. The convict-persons have filed the instant appeal against the aforementioned judgment, whereas reference has also been sent by the trial Court for the confirmation of the sentence of "Qisas".
8. Arguing on behalf of the convict- appellants, Namat Ullah and Fazal Dad, it was vehemently argued by Mirza Muhammad Nisar, the learned counsel that the prosecution miserably failed to bring guilt home to the convict-appellants. The learned counsel contended that the prosecution version put forward by the prosecution is contradicted by the prosecution witnesses. Similarly, material contradictions appear in the statement of the prosecution witnesses. The learned counsel, submitted that it is an unseen occurrence and the story of calling a meeting of "Panchayat" is also fictitious which could not be proved by the prosecution, therefore, the prosecution story stands falsified. The, learned counsel has further argued that the eye-witnesses are closely related to the deceased and inimical to the accused/persons as such witnesses being interested their evidence was not worthy of credence. According to him, District Criminal Court 6.11 in error by recording that the defence version put forth by the accused as compared to the prosecution version was not plausible and natural, thus, the same could not be proved by the defence. The learned counsel pressed into service the submission that the prosecution has withheld the injuries of Namat Ullah, accused, which cast heavy doubt upon the prosecution story. The learned counsel maintained that the District Criminal Court, on the basis of surmises and conjectures reached the' conclusion that the prosecution case was convincing and reliable. The learned counsel further argued that the prosecution failed to establish its case against the accused/ respondents that the recoveries effected from the accused/appellants were also doubtful and when the evidence of both the prosecution and defence evaluated with care, it reflects that a false case wasregistered against the accused/persons. The learned counsel pointed out that Rehmat Ullah son of Kala (P.W.7) a witness of "Panchayat" was given up by the prosecution and this fact also adversely reflects upon the prosecution story. The learned counsel went on to argue that Muhammad Latif (P.W.2) and Muhammad A kbar (P.W.4) are chance witnesses, therefore, their statements could not be relied upon. The learned counsel has referred to the statements of the eye-witnesses persuade that there are material contradictions in their statements which make their testimony further doubtful. The learned counsel submitted that in fact the murder was committed at some other place and was not witnessed by anyone. The story was concocted to implicate the accused/persons because of enmity. According to the learned counsel, if while preparing the injury form Exh.P.E., Muhammad Nawaz Khan, A.S.I. (P.W.16) could note (6) injuries at night how he failed to observe the injury No,7 which was also allegedly inflicted upon the left thigh. According to the learned counsel the addition of an injury was purposely done to strengthen the case of prosecution which creates a heavy doubt upon the prosecution tale. The learned counsel emphasized that according to F.1.R., it was alleged that Namat Ullah inflicted an injury of Knife on the -person of Zubair whereas according to the recovery memo. Exh.P.BB., A "Churri" ( ) was shown to be recovered on the pointation of Namat Ullah, accused. According to the learned counsel, this was done to make the prosecution case more heinous. He has submitted that the prosecution also failed to prove the fact that Zubair, was taken to Kotli Hospital while he was injured because according to the statements of Muhammad Hafeez (P.W.6) Haji Muhammad Ilyas (P.W.8) and Rehmat Ullah (P.W.9), Zubair died spontaneously at the place of occurrence. The learned counsel has vigorously contended that the prosecution has intentionally withheld the fact of committing Zina by Zubair, deceased, with Mst. Kausar. The learned counsel has argued with vehemence that in the light of the spot-examination note, recorded by the trial Court the statements of the recovery witnesses cannot be relied upon. In alternative, the learned counsel has argued that the murder was not premeditated but committed, under grave and sudden provocation because when the accused/ persons received the information that Mst. Kausar, sister of Namat Ullah and niece of Fazal Dad, accused/persons was raped by the deceased they were deprived of power of self-control. On this account, the case of the accused/appellants is covered under Exception 1 to section 300, A, P, C, therefore, the impugned order of conviction of accused/person is against the settled principle of law on the subject and liable to be set aside. In support of his contentions, he has cited the following authorities:-- PLD 1984 SC (AJ&K) 21; PLD 1988 SC (AJ&K) 134-207; 1990 PCr.LJ 1390; 1992 SCMR 2047 and PLD 1994 Lahore 392.
9. While controverting the arguments advanced by the learned counsel for the accused/appellants, Muhammad Riaz Alam, the learned counsel for the complainant, vehemently contended that the prosecution story stood proved against the accused/ appellants beyond any reasonable shadow of doubt. The learned counsel argued that the prosecution story is supported by the ocular version of eye-witnesses whose presence is admitted by the accused/appellants.
The learned counsel has further submitted that the F.I.R., was lodged promptly and eyewitnesses were named in the F.I.R. The prosecution case does not suffer from any material illegality or infirmity. According to him, all the eye-witnesses are unanimous on the point that the deceased was done away with his life by inflicting injuries with a "Churri" by Namat Ullah, accused/appellant which hit on the left side of the chest, head and leg of the deceased where Fazal Dad, accused/appellant caused injuries on the chest, back and the legs of the deceased with a stick who in consequence of said injuries fell down and while taking to District Headquarter Hospital Kotli, succumbed to the injuries. The learned counsel has submitted that the defence did not raise any counter-version in the statements recorded under section 242, Cr.P.C., Fazal, Dad, accused, failed to take a specific counter-version. However, Namat Ullah, accused for the first time, raised a counter- version in his statement recorded under section 342, Cr.P.C. In the manner that the deceased had committed "Zayadati" ( ) with his sister and he wanted to lodge a report at the police station, therefore, he was involved in false case. The learned counsel has pointed out that the defence did not raise the counter-version as to whether the appellant had acted in grave and sudden provocation. Similarly, no suggestion was put forth to the prosecution witnesses by the defence in this respect. The learned counsel has maintained that the injuries on the person of deceased stand proved due to the cross-examination made upon Muhammad Hanif (P.W.1), whereat, it was suggested by the defence that the third injury on the person of deceased was caused by the complainant party to strengthen its case. According to the learned counsel, it transpires from the suggestions put forth by the defence upon the prosecution witnesses that the occurrence is admitted by the defence. The learned counsel has pressed into service the submission that Muhammad Latif', (P.W.2) and Muhammad Akbar (P.W.4) have proved the meeting of "Panchayat".
In this respect, he has referred to me suggestion appearing on page 8 of the statement of Muhammad Hafeez (P.W.6) put forth by the defence. The learned counsel has zealously contended that the prosecution story as alleged by the prosecution not only stands proved by the statements of the eye-witnesses who have no enmity or grudge to falsely implicate the accused/appellants but is also supported by the medical evidence as well as the evidence of recoveries on the pointation of accused/appellants. The prosecution tale also stands corroborated by the blood- stained grass and clay, recovered from the place of occurrence and the clothes of the deceased wearing at the time of occurrence. It is further maintained by the learned counsel for the complainant that the motive as alleged by the prosecution also stand proved by the evidence of prosecution. The learned counsel has also contended that the trial Court has not recorded anything against the prosecution in the light of the spot examination note rather it proves the factum of recovery of dagger from the house of the accused. In support of the arguments, the reliance was placed upon the following case law:--
(1) PLD 1983 SC 73.
(2) 2001 PCr.LJ 524.
10. Sardar Muhammad Illyas Khan, the learned Additional Advocate-General, appearing on behalf of the State, has fully supported the contentions raised by Muhammad Riaz Alam, the learned counsel for the complainant.
11. I have carefully considered the respective contentions of the learned counsel for the parties, perused the record and the case law cited.
12. The prosecution case rests upon the ocular version, medical evidence and the incriminating recoveries made at the instance of the accused/persons from the place of occurrence. The prosecution has produced five eye-witnesses of the occurrence. All of them alongwith the accused/persons were present on fateful day in the house of Nahmat Ullah, accused. Muhammad Hanif (P.W.1), Muhammad Latif (P.W.2), Rakhmat Ullah son of Rahmat Ullah (P.W.3), Muhammad Akbar (P.W.4) and Muhammad Hafeez (P.W.6) have clearly stated the first hand account of the occurrence before the trial Court which has been accepted. They have deposed that a meeting of a "Panchayat" was called by Fazal Dad, accused in connection with the allegation of illicit relations between Zubair deceased and Mst. Kausar, sister of Namat Ullah accused. All the abovementioned eye-witnesses participated the meeting of "Panchayat". This fact finds support not only by the trend of cross-examination but also from the defence evidence Muhammad Ayyub and Muhammad Iqbal, the defence witnesses, have stated that they participated in the meeting of "Panchayat" where Muhammad Hanif (P.W.1), Muhammad Akbar (P.W.4) and Muhammad Hafeez (P.W.6) were also present. Furthermore, the facts of the commission of occurrence at the time, as alleged by the prosecution and carrying away of Zubair, deceased, from the place of occurrence in injured position are also admitted by the defence. All the above-mentioned eye-witnesses are unanimous on the point that during the meeting of Panchayat" accused/appellants have been threatening Zubair to kill him. They also corroborated the fact that Fazal Dad asked his son to bring a dagger so that he may cut the main organ of Zubair and give it to his mother. The eye-witnesses further testified that on the intervention and after making earnest supplication by Rakhmat Ullah, the accused-appellants forgave the deceased who was sent out on the order of Fazal Dad accused. As soon as deceased went out of the house of Namat Ullah accused, both the accused/persons chased him and launched an attack upon him. Fazal Dad, accused inflicted injuries upon his back and chest with a stick whereas Namat Ullah, accused, caused injuries with a "Churri" on his chest, head and left leg. Zubair fell down and later on, succumbed to his injuries while his way to District Headquarter Hospital Kotli. The presence of the eye-witnesses in the house of Namat Ullah, accused is natural because except Muhammad Hafeez (P.W.6) all of them were invited to attend the meeting of "Panchayat" Their witnessing the occurrence from a close distance in the open light is also proved. Therefore, hardly remains any doubt that the eye-witnesses have stated the same in the manner they had seen. As stated earlier, the presence of P. Ws. Muhammad Hanif, Muhammad Akbar and Muhammad Hafeez is not disputed by the defence. Therefore, the occurrence stands proved.
13. The contention of the learned counsel for the accused/appellants does not appear to be well- founded that theprosecution evidence is full of material contradictions and it does not find any support from the confirmatory evidence. The careful perusal of the evidence shows that material contradictions do not appear in their statements. As far as the contradictions are concerned, there is a clear difference between a contradiction and discrepancy. Contradiction means the statement of the opposite or a denial or an inconsistent statement, whereby the mere discrepancy does not amount to an inconsistency and denial of the fact expressed by a witness. The details of the meeting of "Panchayat" that who came earlier and who came later or after the occurrence whether Fazal Dad remained present on the spot or both of the accused/persons fled away and whether a cot was obtained from the house of Anayat Ullah or from the house of Rakhamt Ullah to take Zubair to Hospital are minor discrepancies. It is always very material discrepancies or glaring contradictions coming into conflict with the natural probabilities that militate against the credibility of witnesses justifying the rejection of their testimony. In ordinary course of nature some discrepancies are inevitably bound to occur on account of lapse of memory and power of observation and perception. Parrot-like reproduction of statement can only be expected from the witnesses who go through several rehearsals and are well tutored. If the ocular version is cogent, coherent and reliable about the main story of the prosecution, the minor discrepancies do not matter much. (PLD 1983 SC 73). Furthermore, the defence, in spite of lengthy cross-examination failed to assail credit of eye-witnesses or extract anything which might render their presence doubtful.
14. The next argument of the learned counsel that according of the F.I.R. And the first statement of the complainant recorded under section 161, Cr.P.C., Muhammad Hanif has stated that the deceased was attacked by a knife but he deposed before the Court that the deceased was attacked by "Churri" (a small dagger), makes the case of prosecution doubtful, does not require serious consideration. The perusal of the statement of Muhammad Hanif (P.'W.1), makes it crystal clear that Namat Ullah, accused, launched an attack upon the deceased with a "Churri" and not with a knife. Furthermore, the defence did not confront the witness on this aspect of the case that in F.I.R. And in the statement of Exh.D.A., Muhammad Hanif (P.W.1) has stated knife as weapon of offence but later on he has stated before the Court that Namat Ullah, accused stabbed the deceased with a small dagger (Churri). Likewise, the use of "Churri" as ,weapon of offence lends more support from the statements of Muhammad Latif (P.W.2). Rakhmat Ullah son of Rahmat Ullah (P.W.3) who have in unequivocal manner testified that Namat Ullah inflicted the injuries on the person of Zubair, deceased, with a "Churri". Similarly, "Churri" P.2 was recovered at the instance of Namat Ullah, accused vide recovery memo. Exh.PBB in the presence of Muhammad Ilyas (P.W.8) and Rehmat Ullah alias Rahmi (P.W.9). Therefore, there hardly remains any doubt that "Churri" a weapon of offence, was used by Namat Ullah, accused and not a knife, during the occurrence. On this account the use of word knife instead of "Churri" at the time of registering F.I.R. Does not make the prosecution case suspicious or doubtful. It is celebrated principle of criminal law that F.I.R. Is not a detailed document so as to include each and every detail of the incident reported therein. The purpose of F.I.R. Is to set in to motion the legal machinery for registration and investigation of the case.
15. According to the witness the occurrence as alleged by the prosecution took place near the house of Namat Ullah, accused which is approximately eight Karams from the place of occurrence.
The eye-witnesses though closely related to each other and to the deceased are clear and positive on the point that Zubair was murdered by the convict appellant Namat Ullah and Fazal Dad. The trend of cross-examination shows that their presence at the scene of occurrence was not seriously disputed by the defence. Although it was suggested to the eye-witnesses at the time of cross- examination that in fact the deceased was done to death by somebody else at night when he was proceeding towards the house of Namat Ullah, accused, but all these suggestions were denied by the eye-witnesses. Eye-witnesses, as stated earlier though interrelated and also related to the deceased had no such animus so as to falsely implicate or substitute the convict/appellants in the commission of the offence of murder in place of some other culprits. Muhammad Hanif (P.W.1) is uncle of the deceased while Muhammad Latif (P.W.2) and Rakhmat Ullah son of Rahmat Ullah (P.W.3) are closely related to the &ceased Muhammad Akbar (P.W.4) is his maternal grandfather whereas Muhammad Hafeez (P.W.6) is his grandfather. But the appellants could not bring any fact on the record which could lead to. The conclusion that the prosecution witnesses were inimical to the accused persons. The accused/appellants are also closely related to the complainant party.
Thus, the contention of the learned counsel for the appellants cannot be accepted as true L that since the eye-witnesses were inimical to the accused, therefore, their statement could not be relied upon. It was humanly impossible for the eye-witnesses to involve an innocent person in the case of murder instead of the real culprits. It might be useful to mention here that the statement of an interested witness cannot be relied upon without corroboration, is not a rule of law. It is always the value of the testimony which matters. If the Court is satisfied that the statement of a witness is clear, natural, convincing and trustworthy, it can be relied upon without any corroboration. The contention that the relationship of P.Ws. Make their evidence unreliable since long been discarded by the Superior Court of Azad Jammu and Kashmir as well as of Pakistan. The Supreme Court of Pakistan has gone to the extent that even evidence of an interested witness is always not ignored.
It is admitted principle of criminal jurisprudence that mere relationship of a witness to the deceased is not itself enough to discard the statement and an interested witness is one who has an animus for-false accusation. Reliance may be made to law lay down in a case reported a "Muhammad Sharif v. The State" (PLD 1978 SC (AJ&K) 146), wherein it was observed that if an interested witness is natural witness and his evidence 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 reported as "Mehtab Khan v. The State" (PLD 1979 Azad J&K 23), it was opined that the relationship of a witness with the deceased is not sufficient to discard his testimony, if he is otherwise found to be trustworthy.
' In a case reported as "Niaz Muhammad alias Jaja v. The State" (PLD 1983 SC (AJ&K) 211), it was held that the corroboration of the related witness should not be insisted as a rule of law and the evidence of witness in each case has to be evaluated on merits and if it rings true, the testimony of such a witness can be relied upon without corroboration.
' In a case reported as "Mehboob Shah v. The State" (PLD 1987 Sh.0 (AJ&K) 47, the following principle was enunciated at page 56 of the report:- :{{{URDU TEXT}} ' In a case reported as "Muhammad Khalil v. The State" (1992 SCMR 249), it was held that the mere fact that the witnesses are related to the deceased, it is not sufficient to discard their testimony, especially when they have not been shown inimical to the accused.
' In a case titled "Abrar Hussain Shah. v. The State (1992 SCR 294), it was observed that it is settled principle of law that the testimony of the prosecution witnesses cannot be discarded merely on the ground that they are related to the deceased or the complainant. It was further observed that if the witnesses are related not only to the complainant but also to the accused. Closely, corroboration of their statements by independent evidence cannot be insisted upon, especially so when they are otherwise trustworthy.
' In case reported as "Raqib Khan v. The State and another" (2000 SCMR 163) it was laid down that mere relationship of a witness to the deceased is not enough of a reason to discard his testimony because such a witness is necessarily not an interested witness in the true sense of the term.
' In a case titled "Saeed Akhtar and others v. The State (2000 SCMR 383), it was opined that mere relationship of the witness with the deceased would not detract from their veracity who had absolutely no motive of their own to involve the accused.
' In a case reported as "Muhammad Akhtar Ali v. The State" (2000 SCMR 727), it was observed that the witnesses having no Previous or grudge against the accused not be termed as interested witnesses and their relationship with the deceased alone would no make them interested, as they had no reason to substitute the petitioner for the real killer.
' In a case titled "Allah Dad and another v. Muhammad Nawaz and another" (2001 SCMR 1111), it was held that the mere fact that the P.Ws. Are interested in the prosecutions, is not itself enough to discard their evidence altogether. It was further observed that independent corroboration is not an inflexible rule. Even uncorroborated testimony may be relied upon with reference to other indisputable facts.
' In a case reported as "Farman Ullah v. Qadeem Khan and another" (2001 SCMR 1474), it was laid down that mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such grounds. Particularly, when there is no motive to falsely involve the accused.
' In a case titled "Munawar Ali v. The State" (2001 SCMR 614), it was opined that an interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness. Particularly, when there is no motive to falsely involve the accused.
16. From the survey of the above referred authorities, it would be quite evidence that the Superior Courts in Pakistan and Azad Kashmir have been persistently emphasizing that the evidence of the friends and related witnesses cannot be thrown away because of mere relationship and conviction can be based on evidence of even interested witnesses without any corroboration provided the evidence is coherent, satisfactory and worthy of credence. However, for the sake of abundant saution, corroboration is insisted upon only to satisfy the mind of the Court that no innocent person is being implicated. Coming to the present case the ocular version gets further support from ample confirmatory evidence. Before discussing the corroboratory evidence, it would be convenient to point out as to what corroboration means? The word corroboration was defined in Muhammad Sahrif's case (PLD 1978 SC (AJ&K) 146) as under:-- "Corroboration 01 the statement of interested witness does not mean that the statement of the witnesses is false or untrue. What it really meant 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 witnesses needs corroboration to support it, this finding proceeds on the basis that version of P.Ws. Is prima facie correct but by way of precaution it needs corroboration to attain clarity."
' The same view was affirmed in a case reported as Mehtab Khan v. The State (PLD 1979 SC (AJ&K)
23), wherein it was opined as under:-- "Corroboration does not necessarily mean the evidence of an independent witness but anything in the circumstances which tends to satisfy the Court that each interested witness has spoken the truth. The corroboration need not necessarily be of the same probative force as in the case of an approver since the idea behind seeking extraneous support is that no innocent person is falsely implicated. "
' In the case of Zahir Hussain Shah v. Shah Nawaz Khan and 3 others (2000 SCR 123), it was held that the corroboration of the statement of interested witnesses does not mean that the statement of a witness is false or untrue. What it really mean is that to accept it was wholly true, it is desirable that it should have a conformity support. In fact when it is said that the statement of a witness needs corroboration to support it, this finding proceeds on the basis that version of P.W. Is prima facie, correct but by way of precaution it needs corroboration to attain clarity. It was further observed that what facts and circumstances are sufficient to satisfy the mind of the Court about the truthful nature or otherwise of the testimony of an ocular interested witnesses is a question which varies from case to case and no hard and fast rule can be form dated on the point.
' In the case of "Muhammad Hanif Khan and others v. The State and another" (PLJ 2001 SC (AJ&K)
166), it was opined as under:-- "that the corroboration of related and inimical witnesses in criminal case depends upon circumstances of each case and no hard and fast rule can be laid in that regard. However, as abundant caution, the corroboration of related and inimical witness is generally required by Courts of law . "
' In the case of Munawar Ali v. The State (2001 SCMR 614), it was observed that corroboration being a rule of prudence is not always necessary and uncorroborated testimony can be relied upon in context with other relevant circumstance of a particular case.
' In the light of the case law mentioned hereinabove, I am of the considered view that the corroboration is required to look for a supporting circumstance with a view to eliminating the chance of false implication and it does not require some material evidence but anything in the circumstances which tends to satisfy the Court that each interested witness has spoken the truth.
17. Applying the principles enunciated above to the case before me, now I see that type of confirmatory evidence was produced by the prosecution in support of its tale. Dr. Muhammad Farid (P.W.11) testified the post-mortem report Exh.P.D., who found the stab injuries and injuries inflicted by a blunt weapon exactly on the same part of the body of the deceased whereat the ocular version alleges. According to him, the cause of death is stab wound at left side of the chest of the deceased and probable time that elapsed between injury and death is one to two hours. At this stage I want to advert to an objection raised by the learned counsel for the defence that the perusal of injury form Exh.P.E. Discloses six (6) injuries on the person of the deceased at the time when he was alive but later on injury No,7 was found at the time of the examination of dead body.
According to the learned counsel for the defence injury No,7 was fictitious and incorporated in the injury form to make the case of the prosecution more heinous. It was further argued that if Muhammad Nawaz Khan A.S.I. (P.W.16) could note six injuries at the time of first examination, it was also possible for him to observe injury No,7 which was also allegedly inflicted on the left thigh of the deceased near the injury No,6. This contention of the learned counsel has no substance because it has been sufficiently explained by Muhammad Nawaz Khan A.S.I. (P.W.16). Even otherwise after the death of Zubair, it was not humanly possible for the prosecution to cause an injury to the deceased to make their case heinous. Furthermore, the dipsuted injury also stands proved by a suggestion put to Muhammad Hanif (P.W.1) in his cross-examination. The abovementioned injury is also mentioned in the inquest report Exh.P.F. And the postmortem report which has also been testified by Dr. Muhammad Farid (P.W.11).
18. The recovery of blood-stained grass and clay P-1 from the place of occurrence, ,the dagger P.2, a stick P-3 produced by the accused-appellants and blood-stianed clothing of the deceased provide sufficient corroboratory evidence. The Report of Chemical Examiner is also on record which shows that the articles blood-stained grass and clay P-1, "Churri" P-2 and clothing of the deceased were stained with blood. The aforesaid circumstances are also in nature of confirmatory evidence.
19. The learned counsel for the defence was vehemently criticized the factum of recovery of dagger and submitted that according to the recovery Memo. Exh.P.BB dagger P.2 was allegedly recovered by Raja Shabbir Ahmed (P.W.17) whereas according to him both the recovery witnesses Muhammad Ilyas (P.W.8) and Rahmat Ullah (P.W.9) have deposed that recovery was affected by Muhammad Nawaz Khan A.S.I. (P.W.16). It will be pertinent to note that preliminary investigation was done by Muhammad Nawaz Khan A.S.I. (P.W.16) who recovered the blood-stained grass and clay P-1 from the scene of occurrence. Later on Raja Shabbir Ahmed S.I. (P.W.17) took over the investigation who recovered and took into possession the dagger P-2 and stick P-3 at the instance of the accused-appellants. Therefore, this minor discrepancy does not make the factum of recovery doubtful, especially when Muhammad Nawaz A.S.I. Has clearly testified that he went on the spot and took into possession the blood-stained grass and clay P-1 from the place of occurrence. Raja Shabbir Ahmed (P.W.17) has categorically deposed that at the instance and pointation of accused/appellants dagger P-2 and stick P-3 were taken into possession by him.
Furthermore, .Raja Shabbir Ahmed was not confronted on this point by the defence that the dagger and the stick were not taken into possession in his presence. I also do not find any suggestion upon Investigating Officer in cross-examination about dishonest investigation or of his being partial or inimical to the accused-persons. Therefore, in the light of the statement of Raja Shabbir Ahmed (P.W.17), the factum of recovery of weapons of offence stands proved and the casual assertions of the P. Ws. Muhammad Ilyas and Rahmat Ullah are discrepancies of minor nature which do not damage the case of the prosecution. My this view stands fortified by a case reported as "Khalid and another v. The State (PLJ 1983 SC (AJ&K) 98). For the sake of argument if the evidence of both the recovery witneses is discarded even though the factum of recoveries is amply proved by the statements of Muhammad Nawaz Khan A.S.-I. (P.W.16) and Raja Shabbir Ahmed S.-I. (P.W.17). Their statements cannot be brushed away for the simple reason that they are Police Officers. It might be useful to note that the Police Officers are also as good and reliable witnesses as other person provided their deposition do not suffer from inherent defects. Reliance in this respect may be placed on a case reported as "Muhammad and others v. The State" (PLD 1981 SC 635). Similarly the alteration of figure 39 instead of 93 in site plan is a petty matter which does not effect the case of the prosecution adversely rather the site plan Exh.PD, corroborates the prosecution version. In this view of the matter the contention of the learned counsel for the defence that the recoveries effected from the accused/person are doubtful, is not tenable. On this account in the present case the ocular version gets ample support from the abovementioned corroboratory and confirmatory evidence.
20. It will not be out of place to I mention here that the defence never raised a counter-version in their statement recorded under section 242, Cr.P.C. The version of the defence became apparent from the suggestions made to the eye-witnesses during the cross-examination. It was suggested to the eye-witnesses that the deceased went to the house of accused-persons at night and was injured by some unknown persons. Niamat Ullah accused, in his statement recorded under section 342, Cr.P.C. Deposed that the deceased had committed "Zayadati" with his sister and he wanted to report the matter to the police. Therefore, he was implicated in the case. On the contrary, the prosecution took the version that the deceased was done to death by the accused-persons by inflicting him injuries with "Churri", and stick because they were angry with him on the basis of doubt in their mind that the deceased had developed illicit relationship with Mst. Kausar and when both the versions are taken into juxtaposition and appraised in its true perspective, the version set up by the defence seems to be improbable, concocted and afterthought in view of the evidence and the circumstances. I may observe here that the eye-witnesses were found "Adil" in purgation.
The ocular testimony of the prosecution is truth worthy and confidence inspiring which could not be shattered despite the lengthy cross-examination of the defence and stands supported by the strong corroboratory and conformity evidence. In this manner, it has been proved that the occurrence took place in the manner as alleged by the prosecution and not as suggested by the defence. It, therefore, follows that the prosecution has brought guilt home to the accused person.
The ocular version with regard to causing of injuries by the dagger and stick is confirmed by medical evidence so is also corroborated by motive. At this stage I want to add that the motive as set up by the prosecution fully supports its version that Zubair was done to death because the accused-person had some doubt in their minds that the deceased has committed "Zayadati" with Mst. Kausar. It is settled principle of criminal jurisprudence that motive is not a sine qua non for, proving an offence of murder if the motive is set up by the prosecution and not proved by it, it does not damage its case, if otherwise commission of murder is proved by other evidence. In this respect reference can be made to a case reported as "Usman Khalid v. Muhammad Younas and another (1996 SCR 197).
21. The same view was affirmed in a case reported as Waris Khan v. The State (2001 SCMR 387), wherein it was observed that the weaknesses of the motive or its absence or where alleged but not proved would hardly make any difference in awarding the death sentence and would not constitute mitigating circumstances where the eye-witnesses' account was worthy of credence, unimpeachable and confidence inspiring.
22. The similar principle was followed in a case titled "Nawaz Ali and another v. The State" (2001 SCMR 726) wherein while discussing the motive it was observed that in case lack of motive altogether or if the prosecution is unable to prove motive for murder, it does not affect the imposition of normal penalty of death in murder case, if the prosecution otherwise, stands able to prove its case against the accused beyond reasonable doubt.
23. The perusal of the abovementioned authorities reveals that if the motive is not proved but the offence against an accused-person is proved by the trustworthy and confidence inspiring evidence, it hardly makes any difference, but in the present case motive, as set up by the prosecution has been amply proved, as stated above.
24. Let me deal with another objection raised by the learned counsel for the defence that the offence was committed under state of grave and sudden provocation when the accused-persons came to know that the deceased has committed "Zayadati" with Mst. Kausar, therefore, it is a case of culpable homicide not amounting to murder. On the other hand the learned counsel for the complainant has vehemently argued that it is not a case of grave and sudden provocation because the alleged incident of "Zayadati" happened much before the occurrence and it is also admitted on the part of the defence that the meeting of "Panchayat" was called whereat the dispute was resolved but the accused-persons committed the offence of murder after pre- planning and premeditation.
25. I have carefully considered the arguments raised by the learned counsel for the parties. It is admitted fact on the record that the meeting of "Panchayat" was called to resolve the dispute of alleged "Zayadati" whereat Mst. Kausar was also called but she refuted the allegation of "Zayadati" and stated before "Panchayat" that Zubair had only slapped her. After hot discussion and due deliberations, the deceased was pushed out of the house, on the order of Fazal Dad, accused. As soon as he went out of the house of Niamat Ullah, accused, he was attacked, upon and murdered by both the accused/appellants. In my view, the case of the defence does not come in purview of exception (1) to section 300, A.P.C. I am cognizant of the fact that the defence has not pleaded the benefit of Exception (1) to section 300, A.P.C. In clear words even though the benefit of the provision can be extended to the accused-appellants if they make out a case for concession. The Court can consider the aspect of the case provided the circumstances indicate that it is otherwise applicable to the facts of the case (PLD 1984 SC (AJ&K) 21). In order to appreciate the correct legal position, it will be fruitful to examine the provision contained in section 300, A. P. C. Which is reproduced below:-- "300. Murder.---Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or ' Secondly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or ' Thirdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or ' Fourthly. If the person committing the act knows it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
' When culpable homicide is not murder ' Exception 1. Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
' The above exception is subject to the following provisions-- ' First. That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
' Secondly. That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the power of such public servant.
' Thirdly. That the provocation is not given by anything done in the lawful exercise of the right of private defence.
' Explanation.---Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
26. App!Ving to the facts of the present case the provisions referred to above indicates that there was situation of sudden and grave provocation in the instant case where the accused would have been out of control to kill the accused persons. Before claiming the benefit of Exception (1) to section 300, A.P.C. It was incumbent upon the defence to prove that the homicide provocation was so grave and sudden which deprived of the accused-person their power of self-control. Above noted provocation may be such that, it would upset not merciy the hasty, hot tempered and hyper-sensitive person but would upset also a person of ordinary sense and calmness, therefore, the accused-persons cannot get benefit of Exception (1) to section 300, A.P.C. Merely on the ground that the deceased had committed "Zayadati" 1 with Mst. Kausar. It is admitted on the Z record that the alleged incident of "Zayadati" took place at noon time and sufficient interval elapsed since the provocation and the occurrence. Thus, there was reasonable time for the accused-persons to cool down. In this context the meeting of "Panchayat" was called and after hot discussion and deliberation the dispute was resolved and the deceased was forgiven on the request of Rahmat Ullah (P.W.3). The deceased was pushed out of the house of Namat Ullah accused. Thereafter, the commission of the offence cannot be described to occur under the heat of passion induced by the sudden and grave provocation. In this respect reference can be made to case reported as Munawar Ali v. The State (2001 SCMR 614), wherein the following principle was enunciated:-- "In so far as the plea of grave and sudden provocation is concerned that appears to be without any substance and cannot be pressed into service because 'the law dose not take into account abnormal creature reacting abnormally in given situation. The law contemplates the acting of normal beings in given situations and the protection i.e, offered by the Exception is the protection for normal beings reacting normally in a given set of circumstances. A Court has to consider whether a reasonable person placed in the same position as the accused was, would have reacted under that provocation in the manner in which the accused did' (Dhanno Khan (1957) Cr.L.J 498). The record is indicative of the fact that no justification whatsoever was available to kill a helpless poor woman on the ground of sudden and grave provocation as nothing has come on record showing that due to heat of passion the alleged murder was committed. Before the plea of grave and sudden provocation is pressed into service it must be shown distinctly not only that act was done under the influence of some feeling which took away from the person doing it all control over his actions, but that feeling had an adequate cause which is lacking badly in this case."
27. In this context so far as the case law referred to by the learned counsel for the defence is concerned, is quite distinguishable and have no application to the facts of the present case. For instance in a case reported as "Muhammad Qasim alias Baga v. The State" (PLD 1984 SC (AJ&K) 21), the accused, a son on seeing his mother having illicit relations with another man, killed both of them under compelling reasons, thus, the provocation was sudden and grave enough to be an extenuation for the offence.
' In case reported as "Muhammad Yousaf and others v. The State" (1990 PCr.LJ 1390), a Hudood case was also pending adjudication against the deceased in respect of the abduction of Munawaran Bibi real sister of the appellants. The deceased exposed his male organ before females. Therefore, it was laid down that the accused-appellants acted under sudden and grave provocation.
28. The next question which . Needs resolution is an objection raised by the learned counsel for the defence. It was vehemently argued on behalf of the accused-appellants that Rehmat Ullah son of Kala (P.W.2), a witness of "Panchayat" was given up by the prosecution to suppress the real story.
Suffice to say that prosecution has produced five witnesses to prove the factum of meeting of "Panchayat". Furthermore, the abovementioned witness was cited in the calendar of witnesses as a witness of recovery but finding no recovery memo. Signed by him, the aforesaid witness was kept back and given up by the prosecution which is a sufficient cause and does not cast serious doubt on the truthfulness of the prosecution story. It is admitted principle of criminal law that if there are number of witnesses on the point, the prosecution is not obliged to produce all of them and non- production of same would not necessary in the absence of anything else give rise to the adverse influence against the prosecution 1983 SCMR 341 and 2001 PCr.LJ 524.
29. It was also contended by the learned counsel for the defence that Muhammad Latif (P.W.2) and Muhammad Akbar (P.W.4) are chance witnesses, thus, their statements cannot be relied upon. The perusal of the statement of Muhammad Latif (P.W.2) especially suggestion put forward by the defence in the last paragraph of his statement amply proves the occurrence and he fully corroborates the prosecution version. So far as the case of Muhammad Akbar (P.W.2) is concerned, his presence in the "Panchayat" is admitted by the defence through the statements of Muhammad Ayyub and Muhammad Iqbal, the defence witnesses, therefore, he cannot be described a chance witness. Even otherwise, if the testimony of a chance witness rings true it can be relied upon without seeking any corroboration, (1992 SCR 249) and (2001 SCMR 424).
30. Coming to another objection pointed out by the learned counsel for the appellants about the factum of non-explanation of the injury on the person of Namat Ullah accused, it is enough to observe that it was fully explained by the prosecution that the aforementioned injury was not inflicted during the course of occurrence but it was caused by a blade when the accused was trying to board the bus. Furthermore, it was not suggested to the prosecution witnesses in their cross-examination as to whether Namat Ullah, accused, was attacked or injured by the deceased.
The defence never raised the version of self-defence either in their statements recorded under section 242, Cr.P.C. Or under section 342, Cr.P.C. Besides considering the nature of injury it could not be ruled out that the same was self-inflicted, on this account, the factum of non-explanation of any injury on the person of Namat Ullah, accused, is not by itself sufficient to create any doubt in the prosecution story, (1992 SCR 249).
31. One more objection was raised by the defence that the prosecution purposely withheld that the allegation of "Zina" by the deceased with Mst. Kausar. The motive of the occurrence has already been discussed in detail and the prosecution witnesses have categorically stated that when Mst.
Kausar was called in the "Panchayat", she refuted the allegation of "Zina" and stated that she was only slapped by the deceased. Furthermore, it was testified by Raja. Shabbir Amed, S.I. Police (P.W.17) that the allegation of rape could not be proved during the investigation. In this manner the prosecution did not try to conceal the allegation of rape and the witnesses have testified the occurrence in the manner they observed it during the commission of offence of murder.
32. I also do not find any substance in the contention of the learned counsel for the ppellants that the statements of the eyexitnesses at trial were extremely discrepant and different from the story advanced by Muhammad Hanif (P.W.1) in the F.I.R. I have carefully examined the F.I.R. And ocular version furnished by the prosecution witnesses at the trial and am of the view that some discrepancies are inevitable which may occur on account of loss of memory but I could not find any material irregularity which injure the main story of the prosecution and damage the credibility of eye-witnesses which could justify the rejection of their testimony in the instant case causing doubt on their veracity.
33. Let me deal now with another point of objection raised by the learned counsel for the accused- appellants that the prosecution has failed to prove the fact that Zubair was taken to D.H.Q. Hospital, Kotli, while he was injured. It has already been noted above that the defence witnesses have clearly testified that they had seen Zubair in injured position while he was taken away. Therefore, it hardly needs any further discussion.
34. I also do not find any substance in this contention of the learned counsel for the defence that according to the spot examination note, recorded by the trial Court, the statements of the recovery witnesses cannot be relied upon. It has already been observed that the factum of recovery has been amply proved by the prosecution evidence, therefore, no further discussion is warranted in this respect.
' The nutshell of the above discussion is that the ocular version finds ample support from confirmatory and corroboratory evidence, as stated above. The prosecution has brought guilt home to the accused-appellants beyond any shadow of doubt and they have been found guilty of the offence of murder of deceased Zubair, as recorded by the trial Court. The eye-witnesses were found "Adil" in purgation and do fulfil the standard and the requirements of the offence needed in the case of "Qisas". I also do not find any mitigating circumstances for lesser punishment to Namat Ullah, accused, because "Qisas" being normal sentence of murder shall meet the ends of justice.
However, the imposition of the sentence of "Tazeer" to Namat Ullah, accused, by the trial Court is unnecessary and uncalled for which is set aside. Therefore, the judgement of the trial Court stands modified to this extent. In this view of the matter, the reference made by the District Criminal Court, Kotli, is accepted and sentenced of "Qisas" awarded to Namat Ullah, accused-appellant vide judgment dated 13-8-1999 is confirmed. The impugned judgment to the extent of Fazal Dad, accused does not suffer from any infirmity or illegality which is also maintained. Consequently, the appeal of Namat Ullah and Fazal Dad convict-appellants fails.