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Criminals appeals Nos. 3 and 7 of 1987, decided on 16th February, 1988.

(On appeal from the Judgment of the Shariat Court dated 8 1 1987 in Criminal Appeal No.15 of 1983).

Ss.5, 6, 8 & 11 Murder Appreciation of evidence Mere fact that the witnesses are related inter se or related to the deceased is not sufficient to discredit outright their testimony if otherwise such witnesses are found to be witnesses of truth Where witnesses are found to have been interested and inimical in the sense that they had a motive to implicate falsely the innocent persons from other party, Court should be on guard and cautiously look for some supporting circumstances with a view to eliminating the chances of false implication, especially in cases where there was a background of blood feuds between the parties or a chain reaction of retaliatory murders.

Mehtab Khan"s case P L D 1979 SC (AJ&K) 23 ref.

Ss.5, 6, 8 & 11 Murder Appreciation of evidence Term "corroboration" Definition Eye witnesses related to accused Duty of Court to ask for independent corroborating evidence. [Words and phrases].

When the eye witnesses are related to deceased, it is enjoined upon the Court to ask for independent corroborating evidence. The term corrobration of evidence used in criminal law meant to lend support, to add weight or credibility to the testimony. It refers to additional circumstances, factor or substance which confirms the evidence. The phrase is defined as:

To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence. The expression "corroborating circumstances" clearly does not mean facts which, independent of a confession, will warrant a conviction; for then the verdict would stand not on the confession, but upon those independent circumstances. To corroborate is to strengthen, to confirm by additional security, to add strength. The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witness, or to comport with some facts otherwise known or established. Corroborating circumstances, then, used in reference to a confession, are such as serve to strengthen it, to render it more probable; such in short, as may serve to impress a jury with a belief in its truth.

Black"s Law Dictionary quoted.

Ss.5, 6, 8 & 11 Murder Recovery witness Appreciation of evidence Recovery No defect or objection found with regard to evidence of recovery witness Crime weapon was stained with human blood which was affirmed by the report of Chemical Examiner Doctor who conducted the post mortem also examined crime weapon and expressed his opinion in his report wherein it was explained that injury of the deceased was possible with the said crime weapon Size of weapon corresponded to the dimension of injury All these circumstances, held, corroborated the testimony of recovery witnesses. [Recovery].

Ss.5, 6. 8 & 11 Murder Appreciation of evidence F.I.R., its contents Absence of details Effect F.I.R. may not contain the details of occurrence, absence of details in F.I.R. cannot be a ground to disbelieve the prosecution case.

--- Ss.5, 6, 8 & 11 Offences of Hudood and Qisas Appreciation of evidence Trial Court has to make purgation of eye witnesses in the case of Hudood and Qisas Where such purgation of eye witnesses was duty carried and record maintained by the Trial Court showed that witnesses" were found "Adils", in addition to test of lengthy cress examination, evidence of purgation, held, strengthened the case of prosecution to accept the credibility of eye witnesses. [Witness].

Ss.5, 6, 8 & 11 Murder Appreciation of evidence Counter version Court has to put both the versions in juxtaposition to ascertain the truth [Evidence].

S.97 Right of self defence of person or property Exception of self defence Ingredients.

The exception of right of self defence of person or property is permitted under law but at the same time, in order to avail the exception of self defence, it is essential to show: (i) that the occurrence was not due to the fault or act of accused; (ii) that there was an immediate danger to life, in honest belief of accused, (iii) that no reasonable course was available to accused to escape or avoid the necessity; and (iv) that there was no intention to cause more harm than necessary for the purpose.

Ss.5, 3 & 24 Penal Code (XLV of 1860), S.300 Wilful murder Punishment Categories Grave and sudden provocation Sentence.

Under section 5 of the Islamic Penal Laws Act, the punishment for an offence of wilful murder, supported by the evidence of two Muslim male adult witnesses is the sentence of Qisas. Normally on proof of offence of intentional murder, an accused is to be awarded the sentence of Qisas. Section 24 of the Act postulates that when the Court arrives at a conclusion that offence of wilful murder is proved but on account of absence of required number of witnesses, or standard of evidence, or other details of incident, the sentence of Qisas cannot be awarded; it is empowered to impose one of the sentences provided under section 3 of the Act. Section 3 describes seven categories of punishment, including the punishment of death and imprisonment. In the present case the number of witnesses required under law is available but it is noticed that the offence of murder was committed in peculiar circumstances. There was a dispute, over the flow of water between the parties. The dispute was not amicably settled as the drain was not completed by accused party. The natural flow of water of the house of accused party was towards west side, through the courtyard of complainant party. There being no other course open for the outlet of water; when the accused found that the water course was closed by the complainant party, under normal circumstances, there was every likelihood of sudden provocation. It may not be grave provocation but it was definitely a case of sudden provocation. The case of defence though does not fall within the ambit of the exception of grave and sudden provocation but still it is an extenuating circumstance entitling the accused to lesser punishment.

Ss.5, 3, 8 & 11 Murder Appreciation of evidence Sentence Held, though infliction of single fatal injury at vital part, like heart, by itself is not a mitigating circumstance, yet the surrounding position of occurrence enables the Court to accept it as a mitigating reason for lesser sentence [ Sentence].

S.382 B Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.5, 6, 8 & 11 Murder Accused a young man and a college student Fact of age of accused coupled with attending circumstances entitled accused to the benefit of concession provided under S.382 B, Cr.P.C.

Raja Muhammad Akram Khan for Appellant.

Muhammad Nisar, Addl. Advocate General for the State.

Kh. Muhammad Saeed for the Complainant.

Imtiaz Ahmed convict has preferred this appeal against the Judgment of the Shariat Court passed on 8 1 1987, whereby he is sentenced to 14 years" R.I. with a fine of Rs.2,000 on the charge of murder of Ghulam Qadir deceased. The other appeal by the State and revision petition by Gul Joo, the father of deceased, are made for enhancement of sentence. All the, appeals arise out of the decision of Shariat Court. These are therefore, disposed of by single judgment.

2. The parties are close neighbours. A common compound wall runs between their houses. The house of Abdul Samad, father of Imtiaz, Ahmed is at a higher level; filthy water of its Kitchen and lavatory flows westward, into the house of Gul Joo complainant. Flow of filthy water is the cause of murder of Ghulam Qadir. It is narrated that" in" order to stop, the outlet of filthy water Gul Joo, raised pillars along with the wall. Messrs Khalid, But Sh. Nasim; Muhammad Mustafa Chughtai and others resolved the dispute Under the decision, Abdul Samad was directed to construct drain throughout the courtyard of Gul Joo for safe flow, of water. He raised the drain covering half of the area. As a consequence filthy water entered some of the rooms: As the complainant decided to shift, to his new house, he alongwith Ghulam Qadir (deceased) his son, Wajahat Hussain and Muhammad Siddique visited "the premises to clean it. One of the rooms was found filled with the filthy water. In view of previous refusal by Abdul Samad to complete the drain, they decided to plug the water hole with blocks. They were busy in closing the passage inside their courtyard when Abdul Samad and Imtiaz, his son, appeared on the scene they asked them to Stop closing the water hole. Ghulam, Qadir told them that they closed the hole for protection of their premises and carried the work Imtiaz Ahmed moved close to Ghulam Qadir. He took out a Chhuri" from his shalwar fold and inflicted injury "on the left side of his chest On, infliction of injury Ghulam Qadir fell down Imtiaz and Abdul Samad disappeared from the scene. Ghulam Qadir was taken to C.M.H. but he succumbed to the injury on way to hospital. It was at 10 00 a.m. on April 9, 1982 when the incident happened. The report was made to Police 45 minutes thereafter, The convict, pleaded not guilty and gave details of occurrence in statement under section 342, Cr.P.C. He" stated that his father constructed drain, two feet wide on west side of his house. His, house was built 20 to 22 years earlier, since when his family resided there. The complainant party in violation of the approved plan of their house, raised two pillars inside the drain On which his father summoned a meeting of respectables of Muhallah. The members of Committee asked the complainant to remove the pillars from the drain and. directed his father, to construct the drain for the outlet of filthy water. In compliance with the aforesaid decision Abdul Samad constructed 25 feet, drain. The complainant party was unhappy over the decision of Committee and was looking for an occasion to pick up quarrel. On the day of incident Muhammad Siddique, Wajhat Hussain and Ghulam. Qadir deceased closed, the water hole "It was" closed "by fixing blocks in the wall. His mother and sisters present, in house intervened but they were abused and pushed away Meanwhile he arrived from a marriage party, and, found that Muhammad Siddique and Ghulam Qadir abused the ladies and carried on closing the water hole He asked them" to desist" from closing the hole. But he was abused and assaulted. They attempted to pull him across the wall, to kill him. In the struggle, he strived to save himself and pushed away Ghulam, Qadir. He fell on stones and "Kandi" he was holding in his hand, at the "time by which he received the injury. The injury caused on the deceased by a fall on stones and "Kandi" resulted in his death.

3. In support of its allegation, the prosecution produced Gul Joo, Wajahat Hussain and Muhammad Siddique as eye witnesses. Abdul Rehman and Amir Hussain testified in support of recovery of bloodstained "Chhuri", the weapon of offence. Taj Muhammad Durani, Bashir-ud Din and Sh. Abdul Rehman supported the recovery of blood stained application. Ghulam Abbas, Kh. Maqbool War, Jhangir Hussain were the witnesses of recoveries of relevant documents. Aurangzeb Patwari, prepared the site plan. The trial Court found Imtiaz Ahmed guilty of murder of Ghulam Qadir but in presence of extenuating circumstances sentenced him under section 304, P.C. for a period of 10 years" R.I. alongwith the fine in the sum of Rs.2,000. All the appellants preferred appeals before the Shariat Court but the same were dismissed on June 30, 1985. On appeal before this Court the decision of the Shariat Court was set aside on account of inordinate delay in announcing the judgment after hearing the arguments. It was further directed by this Court that "the Shariat Court shall examine the proposition in the light of the provisions of sections 6, 8 and 11 of the Azad Jammu and Kashmir Islamic Penal Laws Act, 1974, if it comes to the conclusion that the convict cannot be visited with the punishment of Qisas, contemplated under section 5 of the Islamic Penal Laws Act". On the remand, the Shariat Court enhanced the sentence of imprisonment to 14 years. The learned Judge in the Shariat Court arrived at the conclusion that Imtiaz Ahmed committed the murder of Ghulam Qadir. He was of the opinion that despite the fact that the offence of murder was proved against the convict, it was not proper to award him the sentence of Qisas as he had inflicted" only one blow. Thus, in presence of single injury instead of giving the sentence of Qisas, the Shariat Court awarded the sentence of rigorous imprisonment for 14 years.

4. The eye witnesses (Gul Joo father, Wajahat Hussain and Muhammad Siddique close relatives) are related to deceased. Mr. Muhammad Akram Khan, the learned defence counsel, argued that interested evidence of related witnesses who are equally inimical to accused, should be excluded. He urged that it was not safe to uphold conviction on the basis of such evidence in absence of strong independent corroboration. He cited some authorities in support of the point. He argued that in Islam, evidence of father in favour of son, is unacceptable. Superior Courts of the sub continent, whenever faced with the proposition of appreciation of evidence of related and interested witnesses, settled the point in just manner by not laying any hard and fast rule and deciding each case in the light of its own facts. Identical proposition was raised before this Court in Mehtab Khan"s case P L D 1979 S C AJK 23 wherein the weight of the testimony of the eye witnesses was sought to be reduced on the plea of their relationship with the deceased; on the analyses of law on the point, it was resolved:

(a) The mere fact that the witnesses are related inter se or related to the deceased is not sufficient to discredit outright their testimony of otherwise such witnesses are found to be witnesses

(b) But where the witnesses are found to have been interested and inimical in the sense that they have a motive to implicate falsely the innocent persons from other party, the Court should be on guard and cautiously look for some supporting circumstance with a view to eliminating the chances of false implication, especially in cases where there is a background of blood-feuds between the parties or a chain reaction of retaliatory murders.

4. It is fairly permissible to apply the test of evidence enunciated in Mehtab Khan"s case to the present case. Herein, the time, place, background of dispute over the outlet of water as immediate cause of occurrence and presence of Wajahat Hussain and Muhammad Siddique eye witnesses, is admitted. On perusal of testimony of eye witnesses, we have found the prosecution story established beyond reasonable doubt. Our attention was invited to an improvement in the evidence. It was emphasised that in their statements, eye witnesses deposed that at the time of assault Ghulam Qadir climbed the wall when he was hit with Chhuri, in his chest. According to defence the fact of climbing the wall and standing on it, at the time of assault, was introduced, during the trial to make the story more plausible. We propose to deal with this aspect next when we examine the proposition of two versions.

6. It is accepted that the eye witnesses are related to deceased, as such it is enjoined upon us to ask for independent corroborating evidence. But before doing so, it appears conducive to understand the meaning of term corroboration. The term corroboration of evidence used in criminal law meant to lend support to add weight or credibility to the testimony. It refers to additional circumstance, factor or substance which confirms the evidence. In Black"s Law Dictionary the phrase is defined as:

"To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.

The expression "corroborating circumstances" clearly does not mean facts which, independent of a confession, will warrant a conviction; for then the verdict would stand not on the confession, but upon those independent circumstances. To corroborate is to strengthen, to confirm by additional security, to add strength. The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witness, or to comport with some facts otherwise known or established. Corroborating circumstances, then, sued in reference to a confession, are such as serve to strengthen it, to render it more probable; such in short, as may serve to impress a jury with a belief in its truth."

7. In the present case in addition to eye witnesses, we are in possession of medical evidence and the weapon of offence. In medical report, the injury resulting in death of Ghulam Qadir, is described on left side of chest 1" below left clavicle 1 3/4" x 1" deep. It penetrated the anterior wall of left atrium of heart. According to the medical report the injury was caused with sharp weapon like knife. The position and size of injury is to be compared with the weapon with which it was inflicted. The prosecution produced two witnesses of recovery who testified that "Chhuri", the alleged weapon of offence, was recovered at the instance of accused. We have perused the evidence of recovery witnesses and we find no defect or objection to receive it in support of the prosecution"s case. The learned counsel for the defence said nothing against this evidence as to why it should not be accepted. The "Chhuri" was stained with human blood. This was affirmed in the report of the chemical examiner. The blood group was not determined on account of lack of sufficient material. The Doctor who conducted the post mortem, also examined the "Chhuri" and expressed his opinion in his report wherein it was explained that injury of the deceased was possible with "Chhuri". An abstract of "Churri" was placed on record. We have examined the abstract. In our opinion the size of "Chhuri" corresponds to the dimension of injury". "The afore-described circumstances corroborate the testimony of the eye witnesses.

8. Mr. Muhammad. Akram Khan, the learned counsel for the defence, invited our attention to the evidence of the eye witnesses and pointed out an improvement whereby the deceased was shown standing on the wall: at the time of infliction of injury. It was emphasised that this position was not described in the F. I. R. therefore the evidence of eye witnesses may not be accepted truthful. It is correct that the F.I.R. does not contain a reference that at the time of causing of injury the victim was standing on the wall. But this, in our view, is not a material improvement as it is one of the details of the position occupied by the parties at the time of occurrence. It is well settled that the F.I.R. may not contain the details of occurrence and absence of details in F.I.R., cannot be around to disbelieve the prosecution"s case.

9. Under the Islamic Penal Laws Act, it is enjoined upon the trial Court to make purgation of the eye witnesses in the case of offence of Hudood and Qisas. In the present case the purgation of the eye witnesses was duly carried. The record maintained by he trial Court shows that the witnesses were found "Aadil". In addition to the test of lengthy cross examination the evidence of purgation strengthen the case of prosecution, to accept the credibility of eye witnesses.

10. It was urged that the explanation rendered by the accuses in his statement under section 342, Cr.P.C. provides a plausible version to believe that the occurrence did not take place in the manner ascribed by the prosecution. Moreover, the defence version being very close to self defence, necessitates its acceptance. The plea raised by the learned counsel for the defence is considered in the light of evidence on record. It is accepted that in presence of counter version the Court is enjoined to put both the versions in juxtaposition to ascertain the truth: In the present case, the details of the prosecution"s story are already analysed. The counter version advanced by the defence has been reproduced verbatim, in the operative part" of the order. In order to accept the counter version, it is necessary to have some supporting evidence. The defence produced no evidence in support of its plea. In this situation we have to locate the circumstances, if any, compatible to the defence claim. The learned defence counsel was unable to highlight any such circumstance to satisfy us on this point. We ourselves perused the record and have not been able to find, any material in support of the statement of accused. We propose to deal with this point exhaustively next, when we take up, the question of self defence.

It was emphasised next that the deceased trespassed in the premises of the accused in order to close the water hole from that side. He was engaged in closing the water hole, when the accused arrived on the scene. The accused was abused and assaulted; as such he was justified to push the deceased in order to save himself. In this position the injury caused on the person of deceased cannot be counted as, the liability of accused. The position taken up by the learned counsel for the defence, is partly described earlier. The exception of right of self defence of person or property is permitted under law but at the same time, in order to avail the exception of self defence, it is essential to show; (i) that the occurrence was not due to the fault or act of accused; (ii) that there was an immediate danger to life, in honest belief of accused; (iii) that no reasonable course was available to accused to escape or avoid the necessity; and (iv) that there was no intention to cause more harm than necessary for the purpose.

12. In the present case the accused was in possession of "Chhuri" whereas the deceased was empty handed. The allegation of trespass of deceased in order to close the water hole from that side, is not supported by any circumstance. Moreover, the proposition appears to be improbable. This is so as there is a compound wall dividing the courtyard of the parties. The height of the wall at the relevant point is 3 to 4 feet. It is unexplained as to how the deceased lay injured on the side of his own courtyard. In the circumstances we have to accept the position of occurrence, described by the prosecution. Our attention was invited to bald statement of Gul Joo, wherein it was accepted that a branch of "Draws" tree standing in the courtyard of Abdul Samad, was found broken. This statement was made by Gul Joo in an answer to a question in the cross-examination. But it was not explained as to when, how, and by whom that branch of the tree was broken. This is so as the said branch of tree was neither found lying on the spot at the time of occurrence nor it was recovered during the investigation. Therefore, mere acceptance of the fact that the branch of "Draws" tree was found broken, lends no support to the plea of self defence.

13. Much emphasis was made on the point whereby deceased was described standing on the compound wall when he was assaulted by the accused. It was argued that the introduction of the fact of climbing wall by deceased at the time of infliction of injury, belied the foundations of prosecution"s case. There appears a confusion over the point of standing of deceased on the wall and similar confusion is reflected in the impugned order of the trial Court and the learned Judge of the Shariat Court. The fact of the matter is that at the time of occurrence the deceased was standing on wall about 2 feet high. This wall divides the courtyard of Gul Joo and Raja Usman (Forest Guard). This is sufficiently explained in the keynotes of the site plan prepared by the Patwari. A reference to the aforesaid position made by the eye witnesses, makes it further clear to understand the position in its true prospective. Therefore, it is not fair to suggest that the deceased climbed the compound wall of Abdul Samad, rather it was the other wall about two feet in height, adjoining the wall of Abdul Samad.

14. Under section 5 of the Islamic Penal Laws Act, the punishment for an offence of wilful murder, supported by the evidence of two Muslim male adult witnesses is the sentence of Qisas. Normally on proof of offence of international murder, an accused is to be awarded the sentence of Qisas. Section 24 of the Act postulates that when the Court arrives at a conclusion that offence of wilful murder is proved but on account of absence of required number of witnesses, or standard of evidence, or other details of incident, the sentence of Qisas cannot be awarded; it is empowered to impose one of the sentences provided under section 3 of the Act. Section 3 describes seven categories of punishment, including the punishment of death and imprisonment. In the present case the number of witnesses required under law is available but it is noticed that the offence of murder was committed in peculiar circumstances. There was a dispute, over the flow of water between the parties. The dispute was not amicably settled as the drain was not completed by Abdul Samad. The natural flow of water of the house of Abdul Samad was towards west side, through the courtyard of Gul Joo. There being no other course open for the outlet of water; when the accused found that the watercourse was closed by the complainant party, under normal circumstances, there was every likelihood of sudden provocation. It may not be grave provocation but it was definitely a case of sudden provocation. The case of defence though does not fall within the ambit of the exception of grave and sudden provocation but still in our well considered view it is an extenuating circumstance entitling the accused to lesser punishment.

15. The learned Judge in the Shariat Court sentenced the accused to 14 years" R.I. and to pay Rs.2,000 as fine. The sentence was awarded in presence of a single injury inflicted by the accused to the deceased. We are not satisfied with the aforesaid position as infliction of single fatal injury at vital part, like heart by itself is not a mitigating circumstance. But the surrounding position of the occurrence as described by us enables us to accept it as a mitigating reason for lesser sentence. The period of sentence and fine awarded by the Shariat Court is, therefore, maintained.

16. It is noticed that the accused is a young man and a College student. These factors coupled with the attending circumstances entitled him to the benefit of concession provided under section 382(B) Cr.P.C. we allow the concession to the convict so that the period of detention during the trial is counted towards the period of his imprisonment.

The appeal by the State and the revision by Gul Joo for enhancement of sentence are considered by us. We have discussed the merits of the case in detail. We do not find any substance in the appeal and revision for enhancement of sentence, These are, therefore, dismissed.

M.B.A./212/S.C.A. Order accordingly.

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