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Criminal Appeals Nos.14 and 15 of 1983, decided on 8th June, 1988.
(On appeal from the judgment of the High Court dated 14 4 1983 in Criminal Appeals Nos.1 and 2 of 1980 respectively).
S. 5 idurder Appreciation of evidence Old feud grave enmity and interrelationship of eye witnesses Court has to sift the grain from the chaff Principles of maxim "falsus in uno falsus in omnibus" cannot be applied Part of the testimony of related witnesses which rings true and finds independent corroboration to the satisfaction of the wind of the Judge can be accepted. [Maxim].
Ordinarily integrity of a person is considered as indivisible. He is to be believed or disbelieved as a whole. The genesis of this view is the maxim "falsus in uno falsus in omnibus". The superior Courts of the sub continent have frequently declined to follow the principle as in their vast experience it .vas found that many a time, innocent persons were roped in to settle the account of old enmities. It was, therefore, deemed expedient and just to undertake an exercise of sifting the grain of truth from the chaff of falsehood. If one adheres to the rule, "falsus in uno falsus in omnibus", it shall result in full holiday to the culprits. In under developed and developing countries and even in developed States, interested people reluctantly report the whole truth. False implication has almost become a phenomena. Generally, it is found that while reporting the crime, an informant when happens to be a relative of deceased or otherwise an interested person, he includes among the real culprits, the name of head of that family or family member, enjoying respect and influence, to eliminate the aid and assistance likely to be given to accused. Friends of accused or enemy of complainant are also roped in. Where both sides are injured in free fight, even natural and independent witnesses are listed, among accused to escape from their evidence. An imprecise perception of an event is also one of the reasons of false implication. Such a practice is most detestable yet it is difficult to get rid of this evil. In view of the background of social structure of society of present time, it is enjoined upon the Courts to sift the grain from the chaff. Court is under duty to make deep analysis of the evidence to arrive a correct conclusion. On this premises, it is permissible to accept that part of the testimony of related witnesses which rings true and finds independent corroboration to the satisfaction of the mind of Judge.
S. 5 Murder Expert evidence Arms expert has to give data in his report to establish the points of similarity, so as to believe that it was fired from the revolver of accused. [Evidence].
S. 5 Murder Evidenc Corroboration Stan a r of corroborative evidence varies in each case in the light of its own facts Corroboration of direct evidence may not be asked for when such ocular testimony comes from an independent and unimpeachable source Evidence of related, interested, inimical and otherwise little trustworthy witnesses would ordinarily need its corroboration from impartial source.
S. 5 Murder Crime weapon, recovery of Duty of Investigating Officer. [Recovery].
It is enjoined upon the Investigating Officer to make recovery of crime weapon in presence of respectables of the locality. The legislature has introduced this rule to avoid chances of padding, and conjectural or fictitious recoveries. Therefore, as a safeguard, it was made imperative that a crime weapon or article, connected with the crime, may be recovered in presence of residents of the area or locality, because such witnesses were presumed, as the natural witnesses of the event of recovery.
S. 5 Murder Appreciation of evidence Site plan Evidentiary value. [Evidence].
The value of site plan may be comparatively less when the integrity of eye witnesses is undisputed. But when the testimony of eye witnesses requires independent corroboration, site plan being piece of corroborative evidence, cannot be dropped from consideration. Its assistance has to be availed to reach a correct conclusion.
S. 5 Murder Appreciation of evidence When origin of incident and place of occurrence suggested by prosecution do not look plausible or appeal to reason, Court has to advert to the total facts of the case to form its opinion When defence puts forward its version, in that case both versions are to be placed in juxtaposition to find out the truth When any one version is found plausible, it has to be accepted without reluctance.
Ss. 5, 3 & 24 Murder Sentence of Qisas Tazkiya tu Shahud, a condition precedent. [Sentence].
Under the Azad Jammu and Kashmir Islamic Penal Laws Act, 1974 it is enjoined that an offence of murder shall be punishable with the sentence of "Qisas" where it is supported by the evidence of two male adult Muslim witnesses. It is further postulated that the Muslim male eye witnesses must be "Adil" as found so by the Court through ( ). This is a condition precedent. In the present case "Tazkiya" was not conducted by the Court but it was undertaken only by District Qazi. It is, therefore, defective. Moreover, the record placed before the Court shows that "Tazkiya" was made in a mechanical fashion. The day of "Tazkiya" precedes the date of despatch of particulars of the eye witnesses for the purpose. This suggests that no "Tazkiya" was made in strict compliance of law. The report of ( ) is incomplete as it does not contain sufficient evidence so as to satisfy that the qualifications, relating to the character of eye witnesses, fulfilled the condition of an "Adil witness. Therefore, the flaw of "Tazkiya" is there. In absence of ( ) the sentence of "Qisas" is not permissible.
Under section 24 of the Islamic Penal Laws Act, it postulated that when the Court arrives at the conclusion that an offence of murder is proved against the accused but the requisite number of witnesses is not available or that the witnesses are not found ( ) on account of which the accused cannot be awarded the sentence of "Qisas" or that in view, of the circumstances of the case, the sentence of "Qisas" cannot be given, the Court is empowered to convict the accused and award him either of the sentences listed under section 3 of the Act.
S. 382 Convict had been in prison since his arrest and was in death cell since his conviction passed by the Trial Court Convict, therefore, was entitled to the benefit of S.382 A, Cr.P.C.
Kh. Muhammad for Appellant (in Criminal Appeal No.14 of 1983).
Syed Manzoor Hussain Gillani, Advocate General for the State (in Criminal Appeal No.14 of 1983).
Sardar Rafique Mahmood for Complainant (in Criminal Appeal No. 14 of 1983).
Syed Manzoor Hussain Gillani, A. G. for the State (in Criminal Appeal No.15 of 1983)
Kh. Muhammad Saeed for Respondents (in Criminal Appeal No.15 of 1983).
Sardar Rafique Mahmood for the Complainant (in Criminal Appeal No. 15 of 1983.
Muhammad Sharif has filed the appeal against the order of his conviction and the State has moved its appeal against the acquittal of respondents. Both the appeals arise out of common decision of the High Court passed on April 14, 1983, these are, therefore, disposed of together.
2. On August 2, 1977, at 9 00 a.m., Muhammad Farid s/o Aziz, Muhammad Bashir s/o Nawaz and Muhammad Seemab s/o Rafique made mischief by damaging the crop of Muhammad Azim, complainant, through their cattle trespass. Muhammad Azim and Seemab Khan, his son, reprehended them for the damage caused to their crop. They abused each other and exchanged blows. At 1 30 afternoon Muhammad Zarin, another son of the complainant, informed him that Muhammad Sharif, Muhammad Rafique, Muhammad Nazir, Muhammad Farid sons of Puno Khan, Muhammad Aziz, Muhammad Nawaz sons of Bala Khan and Gul Majid conspired in the shop of Muhammad Rafique to take revenge of the morning incident. Doctor Farman Ali and Maulvi Muhammad Sadiq also shared the conspiracy. Seemab Khan, Muhammad Salim his brother and Babu Sher Afzal on that day stocked sand" on the river bank. The complainant went" to see them. It was 3 30 p.m. when he reached near the Forest Nursery Chattar Kalas; he saw Muhammad Sharif, Muhammad Rafique, Muhammad Farid, Muhammad Nazir, Muhammad Aziz, Muhammad Nawaz, Gul Majid, Muhammad Iqbal, Muhammad Bashir and Muhammad Seemab son of Muhammad Rafique going towards the river where Babu Sher Afzal, Seemab and Salim were engaged in stockpiling the sand. The accused were armed. Muhammad Sharif aimed a fire with revolver on Sher Afzal end hit him in abdomen. The second fire was aimed at Muhammad Salim but it hit left elbow of Rahim Shah who was tending cattle nearby. Muhammad Nazir, Muhammad Rafique and Farid fired in the air with their .12 bore guns, while other accused assaulted Seemab and Salim with lathis and thereafter the accused left for Kulian Bazar. They were followed by the complainant and other eye witnesses including Seemab, while Muhammad Salim stayed with Sher Afzal, "lying injured on the spot. The complainant lodged the report at Police Post Kulian. Soon thereafter there was second clash between the parties in which Raja Abdul Qayyum of complainant party also received injuries. Muhammad Farid, Gul Majid and Muhammad Rafique accused were also injured in earlier encounter at the hands of Seemab. This is the prosecution version.
3. The opposite version of the defence is that Muhammad Sharif, Muhammad Farid his brother and Muhammad Farid his nephew were going home from Kulian Bazar. They had covered a distance of one furlong when Muhammad Azim, Qayyum Khan, Master Majid Khan, Yaqub Khan. Javid Iqbal, Muhammad Salim, Muhammad Seemab, Mushtaq Ahmed, Muhammad Zarin, Sher Afzal alongwith other persons, armed with guns and lathis, confronted them from opposite direction. On seeing their opponents armed, they turned back and fled towards Kulian Bazar. Sher Afzal, Salim and Seemab overtook them and attempted to overpower them when Javid Iqbal fired revolver shot on accused which hit Sher Afzal. The accused manoeuvred their escape and reached the shop of Muhammad Rafique but their opponents carried their chase and attacked them. They trespassed in the shop of Rafique, destroyed the merchandise by throwing it on the road. Muhammad Farid; Rafique and Gul Majid of accused party were injured. Thus, according to defence there was one incident where both parties received injuries. It was alleged that the complainant party was aggressor as they came armed in consequence of their pre-concert.
4. Out of ten accused named in the F.I.R. eight were sent to trial. Muhammad Nazir, Muhammad Nawaz, Muhammad Aziz pleaded their alibi. Out of eight accused sent to trial, seven were acquitted while Muhammad Sharif was convicted on the charge of murder of Sher Afzal and was awarded the sentence of Qisas.
It is evident from the aforesaid cross versions that Sher Afzal was hit with revolver bullet and eight persons, including three from accused party, received injuries in the incident. The time of occurrence is not disputed. Nevertheless, the place, the manner and origin of incident is disputed. According to prosecution the occurrence took place in survey No.298 situate at a distance of 28 feet west of Muzaffarabad Kohala Road, whereas the defence has alleged that occurrence took place partly on the road about one furlong away from Kulian Bazar and partly in the shop of Muhammad as. It is relevant to state heft that the trial Court as well as the Shariat Court, partly disbelieved the prosecution and acquitted all other accused, except Muhammad Sharif, who in their opinion, was responsible for the murder of Sher Afzal. Among the eye witnesses, Seemab Khan, Muhammad Salim and Rahim Shah were injured. They, were believed to the extent of appellant convict as their testimony was found corroborated by the evidence of Doctor Muhammad Arif and Muhammad Hanif Nasim ballistic expert.
6. Kh. Muhammad Saeed, the learned counsel for the appellant, contended that conviction of Muhammad Sharif cannot sustain on tainted evidence of eye witnesses who were disbelieved by the trial Court and Shariat Court in respect of seven acquitted accused. It was emphasised that in presence of old feuds and grave enmity and inter relationship of eye witnesses it was not fair and just to rely on such evidence to uphold the conviction of Muhammad Sharif.
7. Ordinarily integrity of a person is considered as indivisible. He is to be believed or disbelieved as a whole. The genesis of this view is the maxim "falsus in uno falsus in omni bus". The superior Courts of the sub continent have frequently declined to follow the principle as in their vast experience it was found that many a time, innocent persons were roped in to settle the account of old enmities. It was, therefore, deemed expedient and just to undertake an exercise of sifting the grain of truth from the chaff of falsehood. I find myself in complete agreement with aforesaid consensus. This is so as if we adhere to the rule, "falsus in uno falsus in omni bus", it shall result in full holiday to the culprits. In under developed and developing countries and even in developed States, interested people reluctantly report the whole truth. False implication has almost become a phenomena. Generally, it is found that while reporting the crime, an informant when happens to be a relative of deceased or otherwise an interested person, he includes among the real culprits, the name of head of that family or family member, enjoying respect and. influence, to eliminate the aid and assistance likely to be given to accused. Friends of accused or enemy of complainant are also roped in. Where both sides are injured in free fight, even natural and independent witnesses are listed, among accused to escape from their evidence. An imprecise perception of an event is also one of the reasons of false implication. Such a practice is most" detestable yet it is difficult to get rid of this evil. In view of the aforesaid background of social structure of society of present times, it is enjoined upon the Courts to sift the grain from the chaff. It is rightly held that Court is under duty to make deep analysis of the evidence to arrive at correct conclusion. On this premises, it is permissible to accept that part of the testimony of related witnesses which rings true and finds independent corroboration to the satisfaction of the mind of Judge. In the present case, undoubtedly the trial Court as well as the High Court acquitted seven accused as the testimony of eye witnesses was not found trustworthy nor it was corroborated by independent evidence to that extent, but the acquittal of some of the accused alone is not sufficient to discard even that part of evidence which is corroborated by independent source. In Muhammad Sharif v. The State P L D 1978 S C (AJK) 146, it was held as:
"The maxim falsus in uno falsus in omni bus (false in one particular false in all) is a dangerous one especially in this part of the country "for if whole body of testimony were to be rejected because the witness was evidently speaking untruth in one or more particulars, it is to be feared that witness might be dispensed with There is always embroidery to a story, however, true in the main. When main part of the deposition is true it should not arbitrarily be rejected because of want of veracity on perhaps some very minor point. Therefore, where a witness is stated to have given false evidence to implicate some innocent persons, besides the real culprits, his whole deposition may not be rejected when the main portion of evidence, which rings true can be legally relied upon."
8. The learned Judges of the High Court maintained conviction of Muhammad Sharif as in their opinion the evidence of eye witnesses was fully corroborated to his extent by the statement of Dr. Arif and Muhammad Hanif Nasim, Ballistic Expert. What is, therefore, essential to be examined, is the evidence of Dr. Arif and Hanif Nasim.
9. Sher Afzal was shifted to C.M.H. Muzaffarabad on the evening of August 2. He was in semi conscious condition. According to Dr. Arif, operation was conducted on the next day and bullet P 4 was recovered from the abdomen of deceased. He expired on August 4. A perusal of the evidence of Dr. Arif reflects that he omitted to prepare medico legal report describing the number and nature of injuries observed pre operation. If at all some report was prepared by him, at least it was not placed on the record of the Court. It appears that Dr. Arif gave detail of injuries in his evidence with the aid of post mortem report, made by Dr. Manzoor Ahmed. Be that as it may, as infliction of bullet injury is undisputed, the importance of evidence of the witness is reduced to the recovery of bullet from the abdomen of deceased and its seizure by recovery memo attested by him. Evidence of doctor was recorded on January 1, 1979, i.e., 17 months after the incident. He was good enough to identify the bullet in the Court despite absence of any mark of identification. He should not have gone to that extent to prove identification of bullet. Such an approach of doctor by itself reduced the weight of his evidence. Not being an expert in forensic science, it was not possible for him to identify the bullet even after couple of days unless, of course, it contained some specific mark of identification, and that too was reduced in his report. But whatever the value of doctor"s evidence is, at least we have to accept the testimony of doctor pertaining to the recovery of bullet as the memo of recovery was attested by him particularly when his evidence was not challenged by defence on that score. Therefore, the testimony of doctor is relevant to the extent of recovery of bullet by operation of Sher Afzal.
The bullet was sent to Ballistic Expert Hanif Nasim, on August 18. It was sent in sealed parcel. It was examined by the expert in Forensic Science Laboratory, Lahore and was found to have been fired from the revolver recovered at the instance of the accused. Army Expert failed to give data of his examination and discovery of points of similarity of crime bullet with the test bullet to establish that crime bullet was fired from the crime weapon. In my opinion, in order to satisfy the Court, it was enjoined upon the Arms Expert to give data in his report to establish the points of similarity, so as to believe that it was fired from the revolver of appellant. No such data was described in the report nor it was explained in the evidence. It is strange that the defence took no notice of this omission and failed to question the witnesses on the point. In absence of cross examination and exploring on the point by the defence, to disprove or demolish the points of similarity of crime bullet with the test bullet, it does not look proper at this stage to totally discard the evidence of the expert. I, therefore, do not feel persuaded to record my disagreement with the learned Judges of the High Court to discard the evidence of Arms, Expert. The evidence of Arms Expert coupled with the evidence of Dr. Arif, lends corroboration to the testimony of eye witnesses.
10. The standard of corroborative evidence varies in the light of its own facts. Therefore, no hard and fast rule, relating to corroborative evidence, can be prescribed. Its importance is valued to eliminate remote chances of conviction of an innocent person. In other words corroboration of direct evidence may not be asked for when such ocular testimony comes from an independent and unimpeachable source. Contrarily evidence of related, interested, inimical and otherwise little trustworthy witnesses would ordinarily need its corroboration from impartial source. In view of peculiar facts of the case the testimony of related but injured eye witnesses do find corroboration in the manner described above. Its details are further analysed item wise.
11. Kh. Muhammad Saeed, the learned counsel seriously challenged the recovery of revolver the weapon of crime, to make believe that prosecution spared no effort in padding and introduction of fictitious evidence. He argued that recovery witnesses were not the men of locality. Moreover, they were inimical and interested. The recovery was, therefore, not lawful.
12. It is enjoined upon the Investigating Officer to make recovery of crime weapon in presence of re5pectables of the locality. The legislature has introduced this rule to avoid chances of padding and conjectural or fictitious recoveries. Therefore, as a safeguard, it was made imperative that a crime weapon or article, connected with the crime, may be recovered presence of residents of the area or locality, because such witnesses were presumed, as the natural witnesses of the event of recovery. In present case, Ali Asghar and Mushtaq, the recovery witnesses, do not hail from the locality. They are not shopkeepers of Kulian Bazar, where the alleged recovery was made. According to prosecution, soon after the incident, Muhammad Sharif reached the shop of Muhammad Shaft and managed to conceal his revolver under the bags. He was arrested there and the recovery was led by him from that shop in presence of Ali Asghar and Mushtf Both the witnesses were subjected to considerable cross examine. Their evidence suffers from material contradictions. Apart from the recovery was not made in presence of the shopkeeper, admitted present in the shop at the time, nor it was witnessed by neighbouring shopkeepers. The prosecution has not come form with any explanation, whatsoever, for its failure to adhere to rule of recovery. The defence produced Muhammad Sharif shop-keep Muhammad Sharif is not an owner of the shop but it is admitted that he was an employee of Muhammad Shaft, the owner of the shop. Muhammad Sharif is an impartial witness. At least his impartiality not challenged in the cross examination by the prosecution.
Revolver, the alleged crime weapon, admittedly belongs to Muhammad Sharif. He is licence holder of the same. It was explained that revovler was handed over to D.S.P. on his demand by a brother of Sharif. Its recovery from the shop of Shaft on the day of incident was denied. The aforesaid explanation finds support from the evidence of Sharif shopkeeper, who appeared in defence. No reason has been given by the trial Court and Shariat Court to disbelieve him. Ali Asghar and Mushtaq, who supported recovery of revolver admitted the presence of Sharif in the shop at the time of recovery. He is an impartial and natural witness. Why he should not be trusted, is not, explained. He is disbelieved, perhaps, because he supported the defence. Such an approach is erroneous. Moreover, in his cross-examination, the Public Prosecutor, purposely made repeated suggestions that revolver was recovered by Wali Dad D.S.P. This was quite in conflict with the case of prosecution. It is claimed that recovery was made by Najib Ali Head Constable before the arrival of D.S.P. It is, therefore, safe to hold that recovery of revolver was illegal and doubtful. But this cannot help the defence to seek exoneration as the crime bullet has been proved to have been fired from the revolver of Sharif.
14. Four persons out of eight eye witnesses were injured. Raja Qayyum claimed that he was injured in the subsequent encounter whereas defence story is otherwise. Anyhow, first of all it is necessary to consider the presence of Rahim Shah and weight of his evidence. He is said to be an independent witness. If his presence as an eye witness is accepted, that shall lend strong independent corroboration to the testimony of Seemab and Salim, injured eye witnesses.
15. It was alleged that Sharif aimed his fire on Salim but it hit left elbow of Rahim Shah, tending cattle nearby at a distance of 8 feet. This injury was described as gunshot wound by the Doctor. It is interesting to note that the trial Court accepted that part of the allegation but did not convict Sharif for the offence. The Shariat Court completely overlooked the point and did not discuss this aspect of the case. It confined to the conviction on the charge of murder as in its opinion the evidence of injured eye witnesses was corroborated by Dr. Arif and Muhammad Hanif Nasim, Arms Expert.
16. The presence of Rahim Shah at the place of incident is not free from doubt. He does not fully corroborate the other eye witnesses. He failed to disclose that other three accused fired in air, with .12 bore guns, nor he supported infliction of lathi blows on Seemab and Salim. This alone is not enough. Further it is found that in medicolegal report Exh. P. S. the date of arrival in the C. M. H. for medical examination is described as August 9. It means he was medically examined for the first time, seven days after the occurrence. The report is accompanied by a slip Exh. P.II, in the hand of Dr. Arif. It is also dated August 9, 1977. There is no other report showing thereby that he was examined on August 2, when the fight took place. The medico legal report completely contradicts the oral evidence of the witness. In presence of the aforesaid position, other contradictions need not be listed to exclude him, as an eye witness.
17. Among others Seemab, Raja Qayyum, Salim and Rahim Shah were injured. Presence of Rahim Shah is already excluded by virtue of contradictions in material particulars and conflicting medicol legal report. Salim was not medically examined. He accompanied Sher Afzal to the hospital. He made no report of his alleged injury at all; otherwise there was hardly a reason that he should not have been examined by the Doctor. He has not given any explanation for escaping the medical examination. Raja Qayyum deposed that he was injured in Kulian Bazar, statement of injuries prepared by police, described single injury on him. Doctor in his report has not described number of his injuries but has given multiple injuries. Three injuries were shown to have been caused to Seemab. Injuries inflicted on the aforesaid eye witness were described as simple injuries. As against this, on defence side Farid s/o Aziz received seven injuries on different parts of his body including one on head. Farid and Rafique both brothers of Sharif received three injuries each and Gul Majid had two injuries on his person. These injuries, caused with blunt weapon, were also declared simple. In presence of the aforesaid position, it is necessary to ascertain the origin and manner of fight and real place of occurrence.
18. The allegation of prosecution is that incident took place in survey No.298 situate west side, at a distance of 28 feet of Muzaffarabad Kohala Road. To support the accusation, site plan was prepared by Patwari in presence of eye witnesses and under the supervision of D. S. P. on August 5. The site plan and key notes do not describe the exact site showing presence of each accused. It is indicative of the fact that despite delay in preparing the site plan prosecution was not sure of the position occupied by different accused, during the occurrence. Therefore, it failed to prove complicity of all the accused. Summandar Khan, Patwari, frankly accepted in his evidence that shopkeepers of Kulian and others present on the spot told him that an incorrect site plan was prepared as the actual place of occurrence was quite different from one described in the plan. This suggests that fight took place somewhere else and not in survey No.298. In this report Muhammad Azim, alleged that earlier in the morning, some of the accused committed mischief by damaging his crop through their cattle trespass. This was described as the motive. But in site plan as well as Khasra Girdawari Exh. P.O. no crop is shown in survey No.298. The alleged motive of mischief by damaging the crop through cattle trespass, is not proved. Rather, the evidence on record contradicts it. It appears as concoction. The origin and place of clash is not proved beyond reasonable doubt.
19. Mr. Gillani, the learned Advocate General, contended that in presence of evidence of eye witnesses site plan carries no weight. He cited Kameer v. The State P L D 1982 FSC 21. The value of site plan may be comparatively less when the integrity of eye witnesses is undisputed. But when the testimony of eyewitnesses requires independent corroboration, site plan being piece of corroborative evidence, cannot be dropped from consideration its assistance has to be availed to reach a correct conclusion. The authority relied upon, does not help as in that case the testimony of eye witnesses was well believed. That is not the position here. Here the site plan is quite relevant to determine the site of clash. I have no hesitation to hold that the land of complainant was described as place of occurrence to propose the gravity of action of the opposite side. Survey No.298 is not accepted as the site of occurrence.
20. Next, it is to be resolved as to how and in what position the parties clashed with each other. The story put forward by prosecution is not found altogether correct. The counter story does not ring true either. It does not appeal to reason to accept that Sher Afzal received bullet injury from Javed Iqbal while encircling the accused. This is just a stock proposition of the defence.
21. It is well accepted rule of criminal law that when origin of incident and place of occurrence suggested by the prosecution do not lock plausible or appeal to reason, Court has to advert to the total facts of the case to, form its opinion. When defence puts forward its version, in that case both versions are placed in juxtaposition to find out the truth. When anyone version is found plausible, it has to be accepted without reluctance. On laying down the test, next we advert to the circumstances placed before the Court to find out the real situation.
22. The presence of all the eye witnesses has not been accepted as natural and plausible. The story of stocking send on river bank is also not supported by the site plan, either. The arrival of Muhammad Azim on scene right at the moment of firing, does not appear as correct. Similarly, presence of other witnesses is not natural. Why only the family members of complainant on deceased were exclusively present at the site and none else, is not satisfactorily explained. Likewise, presence of members of opposite party was not explained. It is in this view of the matter that the position of injured persons on each side was examined in detail earlier. The logical conclusion is that in presence of past feuds and enmity, the parties were pitted against each other. As they were looking for the opportune moment to settle their past account, they came across and fell upon each other in a free fight. It is not a case of pre concert, but a sudden and free fight. The second encounter in Kulian Bazar, alleged by prosecution is not established. There was no report to that effect nor any connecting evidence was adduced. Therefore, it appears to be a case of single incident which started somewhere near Kulian Bazar and among others, resulted in loss of life of Sher Afzal and the merchandise of Muhammad Rafique.
23. On review of the total circumstances of the case it is safe to hold that the case of the appellant Muhammad Sharif does not warrant sentence of "Qisas". The reasons are:
(i) under the Islamic Penal Laws Act, is enjoined that an offence of murder shall be punishable with the sentence of "Qisas" where it is supported by the evidence of two male adult Muslim witnesses. It is further postulated that the Muslim male eye witnesses must be "Adil" as found so by the Court through ( ). This is a condition precedent. In the present case ( ) was not conducted by the Court as directed by this Court in previous decisions, but it was undertaken only by District Qazi. It is, therefore, defective. Moreover; the record placed before this Court shows that ( ) was made in a mechanical fashion the day of ( ) by Maulvi Hadayat Ullah, precedes the date of despatch of particulars of the eye witnesses for the purpose. This suggests that no ( ) was made in strict compliance of law. The report of ( ) is incomplete as it does not contain sufficient evidence so as to satisfy that the qualifications, relating to the character of eye witnesses, fulfilled the condition of an "Adil" witness. Therefore, the flaw of ( ) is there. In absence of ( ) as described earlier, the sentence of "Qisas" is not permissible.
(ii) that the trial Court as well as the High Court overlooked to determine the place and manner of incident. Besides, both the Courts disbelieved the eye witnesses, as such acquitted seven out of eight accused. This has been done despite the fact that four of the eye witnesses were admittedly injured in the incident. As the responsibility of those injuries was not determined, seven accused were set free. This suggests that the story of prosecution relating to the place, manner and origin of the occurrence was disbelieved. It is cardinal principle of criminal jurisprudence that when the story of prosecution relating to origin of the fight, manner and number of accused is not plausible, the Court has to scrutinise the facts of the case to arrive at its own conclusion. In this view of the matter when the origin of the fight, the manner of incident and place of occurrence as suggested by the prosecution is not considered free from doubt, we have to advert to the defence version in addition to other circumstances on the record. On, this test pf the proposition we have come to the conclusion that the occurrence took place on the roadside where both the parties came across and clashed openly. The number of injured persons on each side further suggests that on account of their past enmity the rival parties were looking for an appropriate moment to settle the dispute. On the day of occurrence they availed the opportunity by inflicting injuries on each other. It is, therefore, a case of free fight; and
(iii) that it is accepted by the prosecution that Muhammad Sharif, accused had no motive to kill Sher Afzal. No enmity between the deceased and accused is shown. The incident of murder, therefore, appears to be without any motive. Therefore, in all circumstances, Muhammad Sharif had no cause to kill Sher Afzal to avenge his enmity.
24. Under section 24 of the Islamic Penal Laws Act, it postulated that when the Court arrives at the conclusion that an offence of murder is proved against the accused but the requisite number of witnesses is not available or that the witnesses are not found, ( ) on account of which the accused cannot be awarded the sentence of "Qisas" or that in view of the circumstances of the case, the sentence of "Qisas" cannot be given, the Court is empowered to convict the accused and award him either of the listed under section 3 of the Act.
In the present case, the circumstances listed above lead to the conclusion that it is not a case of sentences of "Qisas". The sentence of "Qisas" awarded by the trial Court and confirmed by the High Court is, therefore, set aside. The sentence of 10 years" R.I. is deemed sufficient to meet the ends of justice. Here it is necessary to state that the convict has been in prison since his arrest. He is in death cell since his conviction passed by the trial Court. He is, therefore, considered entitled to the benefit of section 382 B, Cr.P.C. The period of imprisonment during trial arid appeals shall be counted, towards his sentence. The appeal of the convict is disposed of accordingly.
In counter appeal for acquittal the learned Advocate General frankly conceded that there was no evidence to press it against the respondents. In the circumstances the appeal against acquittal way not pressed. It is hereby dismissed.
M.B.A./224/SC/A Order accordingly.
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