MUHAMMAD DIN Versus THE STATE

JUDGMENT '

1. Appellant Muhammad Din son of Abdul Karim was arrested in F.I.R. No.27/90 registered at Police Station, Kalri Karachi (South) on 7‑2‑1990 at 2‑30 hours under section 307, P.P.C. (converted into section 302 after the injured died) lodged by complainant Muhammad Miskeen, tried by learned Vth Additional Sessions Judge, Karachi for murdering complainant's brother Abdul Rahim, convicted under section 302, P.P.C. and sentenced to undergo rigorous imprisonment for life with fine of Rs.5,000 or R.I. for three years in default of payment of the fine and to pay compensation of Rs.25,000 to the legal heirs of the deceased under section 544‑A, Cr.P.C. with entitlement of benefit under, section 382(B), Cr.P.C. In this appeal, the appellant has assailed the correctness and legality of the conviction and sentence on several grounds to be discussed after the narration of facts.

2. FACTS :

2. Prosecution story narrated by complainant Muhammad Miskeen in `the F.I.R. and appearing from the evidence reveals that deceased Abdul Rahim son of Imam Din had come from his village Berim Ghali situated in District Abbottabad on 17‑1‑1990 for attending marriage of complainant's daughter. On 6‑2‑1990 he left complainant's house for Machhar Colony to meet his another brother namely, Khalil Muhammad. He was fired upon near ,Bus Stop at Agra Taj Colony Road Karachi. He immediately came back to complainant's house in injured condition and told the complainant that Muhammad Din son of Abdul Karim had fired upon him. Several other persons were also sitting in the house at that time. The bullet had hit him in his abdomen. Soon after disclosure injured Abdul Rahim became unconscious. He was taken to Abbasi Shaheed Hospital in a Taxi by the complainant and his son Charge‑sheet was submitted under section 307, P.P.C. on 16‑2‑1990 '. very next day i.e. on 17‑2‑1990, injured succumbed to his injuries. section 302, P.P.C. was also added with section 307, P.P.C. before touching the merits of this appeal, I consider it necessary to mention about affidavits of witnesses filed alongwith bail applications because their contents are directly attached with the evidence recorded by the trial Court:

(a) One bail application dated. 26‑6‑1990 had been moved alongwith affidavits of Muhammad Miskeen before the trial Court wherein it was stated that " the name of accused Muhammad Din was reported to the police under doubt .

(b) ‑ Another bail application dated 21‑9‑1991 was moved alongwith affidavits of Ghulam Shabbir wherein the same thing was repeated.

3. I would like to discuss the main contents of these affidavits at the time of discussing the evidence of witnesses who, sworn these affidavits.

4. EVIDENCE OF PROSECUTION :

4. Seven witnesses examined by the prosecution include I.O., one police constable, one doctor and four relatives closely related to the appellant and the deceased as is clear from the following:

5. P.W. 1 Muhammad Miskeen: Deceased was his younger brother and appellant is the son of his cousin who is son of his Phupi.

6. P.W. 2 Muhammad Rasheed: He is son‑in‑law of P.W.1.

7. P.W. 3 Muhammad Siddique: Cousin of the appellant and nephew of deceased.

8. P.W.'4 Ghulam Shabbir: Son of P.W. 1 and son‑in‑law of deceased.

9. Evidence of these witnesses removed all clouds of doubts which could cover factual aspects of the case as is clear from the following:

(a) P.W. 1 namely, Muhammad Miskeen, at the time of lodging F.I.R. narrated that:

10. It is thus evident that P.W. 1 had_ .tried to create some doubt at the time of lodging F.I.R. by saying that (some one had fired upon my brother) but at the same time he also narrated that his injured/deceased brother had disclosed the name of appellant why:, had fired upon him. Total duration of time taken fry the deceased from leaving the house of complainant and coming lack to the same house in injured condition was estimated by certain witnesses to be 10; 15 minutes. lb) P.W. 4 namely, Ohinatr liabbir is the Nor of P.W ; . 1‑1e Was prt;:5Vnj in the house when the deceased had left their house and came lack in injured condition. Relevant portion of his evidence recorded by the trial Court in examination‑in‑chief runs as under:

11. "When said Ahdut Rahin: had come to our house he was bleeding from, his abdomen and told us that he had been fired upon by Muhammad Din. Therefore, I and my father took him in a taxi to Abbasi Shaheed Hospital."

12. Evidence of this witness was recorded on 12‑10‑1992 i.e. after about 32 months but it is fully corroborated with the contents of the F.I.R. lodged by his father/complainant Muhammad Miskeen.

(c) P.W. 2 namely, Abdul Rashid is son‑in‑law of complainant. His statement was recorded by the trial Court, on 4‑8‑1992 and on 18‑8‑1992. He was cross‑examined in detail. Relevant portion of his evidence recorded by the trial Court in examination‑in‑chief runs as under:‑‑

13. "Thereafter, he told us that he is going to see younger brother Muhammad Khalil, at Machhar Colony and went away. Dqceased Abdul Rahim came tack alter about W20 minutes. He had kept his. hand on his abdomen and was bleeding. He told us that he has been fired by Muhammad Din We immediately took him to Abbasi Shaheed Hospital.

14. This evidence was, recorded after about 30 months but it fully corroborates with contents of the F.I.R. It was stated by this witness during his cross examination, that:

15. 'Abdul Rahim became unconscious within few minutes of his arrival after disclosing the name of the assailant as Muhammad Din."

(d) P.W. 3 namely, Muhammad Siddique is nephew of the complainant and cousin of appellant Muhammad Din. He reached. hospital on hearing about the incident. Relevant evidence of this witness recorded by the trial Court during examination‑in‑chief reads as under:

16. "Deceased Abdul Rahim told me that he was fired upon at the hands of accused Muhammad Din."

17. 5(a). Medico‑legal Officer Dr. Jalil Qadir stated that on 6‑2‑1990 injured Abdul Rahim was brought by Muhammad Miskeen and on examination he recorded the following injuries:‑‑ '

18. "(1) Fire‑arm wound left side middle region chest mid axillary line about 1/3 c.m. in Diameter Margins rough inverted, no blackening signing or tattooing around blood oozing out from wound.

(2) Fire‑arm wound exit right lower region chest anteriorly about half c.m. Margins everted soft tissues bulging out corresponding puncture in shirt seen:"

19. According to the report prepared by the doctor, injuries were fresh and inflicted by some fire‑arm. Cause of death was stated to be "cardio respiratory failure due to gunshot injury.

(b) Thus evidence of the doctor confirmed the act of firing upon the deceased. Report prepared by the doctor shows that only one bullet was fire from the fire‑arm used by the assailant. This fact is of great importance because as per prosecution; one revolver and 4 live bullets had also been recovered from the appellant.

6. Evidence of :ill the witnesses =except l Muhammad Miskeen, during cross‑examination remained substantially unshattered. It is important as well as strange that the defence did not ask any question from the witnesses regarding firing by the appellant. Even, no suggestion was put, to the witnesses with reference to disclosure of assailant`s name by the deceased. Evidence of P.W. Ghulam Shabbir also proves that so‑called affidavit of Ghulam Shabbir submitted alongwith first bail application, as referred in para. 3 above was a fake document otherwise the defence could put Ghulam Shabbir in hot water with reference to the contents of said affidavits. No question was asked and even no suggestion was put to P.W. 6ihulam Shabbir regarding his affidavit during cross‑examination.

20. So far as complainant Muhammad Miskeen is concerned, he had avoided to support the prosecution, therefore, the defence did not need to ask any question about his affidavit. However, it can be easily estimated that complainant Muhammad Miskeen had intentionally tried to suppress assailant's name by stating in examination‑in‑chief that:‑‑

21. "While going to the; house of Khalil, he (means the deceased) was hit by the bullet. He did not tell me that who had fired him." But this lie (as underlined above) was belied by his own version when this witness also stated in his examination‑in‑chief that:‑‑

22. "My statement was recorded which I had signed. I produce that statement as Exh.5‑A and say it is same correct and bears my signature. I produce the F.I.R. and say its contents are same as those of my statements."

23. It is notable, that Exh.5‑A is a statement under section 154, Cr.P.C. signed by the complainant in English and Exh.5‑B is the F.I.R. lodged by him. No doubt the complainant stated in cross‑examination that his statement and Mash!irnamas (mean Mashirnamas of arrest) were not read over to him but his version that Exh.5‑A is the same, correct and bears his signature fully exposed him that he was not speaking the truth.

24. STATEMENT OF DECEASED :

7. The learned counsel for the accused/appellant submitted written arguments before the trial Court which contained reproduction of statements of witnesses under section 161, Cr.P.C. and it made the work of trial Court and appellate Court easier to compare the same with other pieces of evidence on record. These written arguments also contain the statements of deceased which had not been exhibited by the trial Court as well as the contents of F.I.R. which were not legible when the said FIR. was produced as Exh.5‑B. The said statement runs under:‑‑

25. (b), It was not recorded before any doctor, Magistrate or witness which against law and has no legal value.

(c) Motive of murder as stated in this statement is different as stated other witnesses of prosecution.

26. No doubt, this statement was recorded after about seven days and may not be regarded as dying declaration and certainly it was not treated s even by the trial Court but when the same has not been denied by the defence then it cannot be easily ignored by any Court especially when its contents full corroborate with the contents of F.I.R. and the evidence of other witness with reference to the appellant's role. It was urged by the learned counsel the motive of assault, as mentioned by the deceased in his statement is not the same as stated by other witnesses, hence the said statement can be rejected a this ground. I think that it cannot be done so as presumed or urged by the learned counsel because it is an admitted position that no P.W. was preset when deceased was fired upon by the appellant. Therefore, no one could say with certainty about the words spoken by or exchanged between the decease and the appellant/accused. It was, thus natural that the motive of assault as was expressed by the deceased may or may not be the same as presumed l other prosecution witnesses.

27. It was also contended that statement of deceased recorded in absent of doctor or Magistrate or witnesses has no legal value in the eyes of law or against law. This contention is totally misconceived. There is no such la according to which a statement of an injured be recorded in presence of doctor or Magistrate or witnesses. Any such statement recorded in absence of or witness may or may not be relied upon by the Court in the, light of evidence and circumstances of each case but no illegality takes place if the same recorded by an 1.0. in absence of any person because no 1.0. is supposed 1 search someone to witness it before recording statement of an injured person who, in his opinion,, is on death bed. Be that as it may, but it was strange ft me to note that no question was asked from the 1.0. to shatter his evident about the deceased's statement regarding disclosure of assailant's name. Eve no suggestion was put by the defence to shatter any part of that statement What may have been asked from the 1.0. can be easily estimated from the words spoken by the 1.0. and recorded by trial Court as under:‑‑

28. "The statement of deceased when he was injured was recorded by n on 13‑2‑1990 but I do not remember the time. But it was from 9 a.m. to 1‑00 p.m."

29. It is thus evident that defence asked only date and time of recorder the statement of deceased. As no question was asked to shatter the existence and the contents of the said statement, hence this part of evidence given by the 1.0. i.e. regarding the existence of the statement and its contents, remains totally unrebutted. The defence could easily shatter this part of evidence, especially when there was none to witness that statement, by suggesting only one question that " no statement suds made by the deceased". This suggestion could have shifted the whole burden upon prosecution to prove that statement Admittedly no question of suggestion was put to the 1.0. by the defence, for the reasons best known to the appellant or his counsel, perhaps under an impression that a statement of an injured at death bed has no legal value if it. was recorded in absence of a doctor, Magistrate or a witness/witnesses. Or, account of this reason, this part of the evidence, when the same was also no denied by the defence in written arguments, got unexpected importance.

30. SECTIONS 154. 161 and 265‑F. Cr.P.C. :

8. The judgment in question was also assailed by the learned counsel by urging that contents of F.I.R. lodged by the complainant were not supported by him during cross‑examination. As much reliance was placed on this point, hence, I consider it necessary to deal the same with some detail. Statement under section 154, Cr.P.C. is nothing but an information by a person in capacity of a complainant. Statement of the same person under section 161, Cr.P.C. is an examination by a police officer who treats the person only a police or prosecution witness. Both these statements are not recorded on oath, But the statement of the witness under section 265‑r, c:r.P.C. is before the trial Court on oath which is the substantial piece of evidence to prove or reject the case of prosecution. An F.I.R. lodged under section 154, Cr.P.C. containing no details of the incident may not be treated as a substantial piece of evidence but if it contains name of accused and/or details of the incident or/and details of the witnesses, then it becomes a substantial piece of evidence. In spite of its substantiality it does not become a base of conviction although investigation by Investigating Officer is carried on the basis of the said F.I.R. All such statements recorded by the I.O./I.Os. during investigation by examination of witnesses including the complainant are termed statements under section 161, Cr.Y.C. On the basis of all these statements and the material collected by the 1.0., result of investigation is to be submitted before competent Court under section 173, Cr.P.C. provided the accused is not released under section 169, Cr‑P‑C'‑. Even on the basis of statements under section 161, Cr.P.C. no accused can be convicted because these statements are not the substantive piece of evidence but are (i) to be provided to an accused under section 265‑C, Cr.P.C.; (ii) so that the accused could use those statements for contradicting or testing the competency and reliability of those witnesses during their examination before the trial Court, on oath, under section 265‑F, Cr.P.C. Although information under section 154, Cr.P.C., statements under section 161, Cr.P.C. which are not recorded by police on oath cannot' be equated with the statements recorded under section 265‑F, Cr.P.C. by the court on oath yet their corroboration with one another possesses great importance. After perusing the prosecution evidence ; before the trial court on oath minutely and going through the contents of F.I.R. as well as the statements of the witnesses under section 161, Cr.P.C. it is abundantly evident that no substantial contradiction could be brought into light by the defence during crossexamination of P.Ws. Charge against the present appellant regarding firing upon the deceased remained totally unshattered. So far as the evidence of P.W. 1 namely, Muhammad Miskeen is concerned, he tried to suppress the name of assailant in his examination-in-chid unsuccessfully as pointed out in para. 4 above. But this aspect could not shatter the foundation of prosecution case. Avoiding to support prosecution case and shaking foundation of prosecution case are two different things. At the most it can be. said that complainant in this case did not support the prosecution case or he did not strengthen the foundation of charges against the appellant for the reasons best known to him but, undoubtedly, he had not succeeded to provide any substantial benefit to the appellant on account of this legal position that scope and objects of lodging an F.I.R. under section 154, Cr.P.C., recording statement of any witness under section 161, Cr.P.C. and giving evidence before the trial Court under section 265-F, Cr.P.C. are totally different from each other. If a person, while appearing as a witness before a trial, does not support the contents of F.I.R. or charge-sheet, it cannot become a source to destroy the case of prosecution if the evidence of all other P.Ws. circumstances and other pieces of evidence prove the charges against the accused. In the case of present appellant, the complainant played the same role but unsuccessfully as discussed in the foregoing paragraph because all other pieces of prosecution evidence left no shadow of doubt about the appellant to be guilty of an offence of murdering his relative Abdul Rahim. I have least hesitation in my mind to hold-that if the evidence of complainant against an accused recorded in capacity of a witness by a trial Court does not corroborate with his own version recorded under section 154, Cr.P.C., it may lose the sanctity of that witness but it does not necessarily lose the sanctity of the F.I.R. or the prosecution case provided other pieces of evidence prove charges against the accused.

31. CONTRADICTIONS:

10. In criminal cases it has become a routine to search out as many contradictions as possible from the evidence under this presumption and impression that such contradictions can be effective weapons for smashing every prosecution case against an accused. No doubt, certain contradictions can cause fatal blow to the prosecution story but each and every type of contradiction cannot have any such effect or to be treated too sufficient to uproot charges against an accused. For example, in the case of present appellant it was pointed out that according to the prosecution, accused was arrested in presence of complainant Muhammad Miskcen but the complainant denied this fact in his statement before the Court. No doubt it is a contradiction but it has no significance as it does not have any effect on the reality of firing by the appellant upon the deceased. Similarly it was claimed by the prosecution that revolver used by.the appellant was recovered from him in presence of complainant but the complainant stated on oath that nothing was recovered in his presence. This contradiction could be fatal to the case of prosecution if P.W. Muhammad Ashraf, second Mashir of recovery, had not been examined. Reality of his being police constable does not necessarily make his evidence doubtful especially when the defence did not ask any question and even did not put a suggestion to this witness that " nothing was recovered from the appellant in his presence or "the appellant had himself appeared at the police station" or he (means the witness) was deposing falsely under the influence of his superior who was working as an 1.0. of the case. In absence of any such suggestion the trial Court was fully justified to believe prosecution evidence on recovery of weapon. Same is the position of all other so‑called contradictions pointed out by the learned counsel and none of the same could create cleavage in the established reality of firing by the appellant upon the deceased. For the purpose of safe administration of criminal justice as well as to secure the ends of justice, it is imperative that all pieces of evidence should be taken into consideration together with their collective effect. On account of this basic principle, evidence of P.W. Muhammad Miskeen cannot be taken into consideration in isolation from the evidence of other P.Ws.

32. EVIDENCE OF RELATIVES :

11. An impression has deepened its roots in the field of criminology during the last so many years that evidence of witnesses closely related to aggrieved party should not relied upon. Such witnesses are usually termed as interested witnesses. In the appeal in hand, the impugned judgment of the trial Court was also assailed on the same ground i.e., witnesses examined by the prosecution were close relative of deceased, hence they were interested witnesses and could not be relied upon.

33. No doubt, out of seven prosecution witnesses examined by the prosecution four were close, rather closest, relatives of the deceased but they had the same blood‑relation with the appellant too as stated in para. 4 above. Therefore, their evidence cannot be ignored on account of their being close relatives of the murdered as well as of this murderer. Moreover, there is no law to treat every relative to be "an interested witness" if he/she appears as a witness in favour of an accused or against an accused. The term "interested witness", in its judicial sense, has different import than its general sense. If any person appears as witness in favour of an accused or in favour of aggrieved party or in support of the State, may be, on account of his/her personal monetary gains, enmity, blood‑relationship, inducement or for any other interest of his/her own or of anybody else for whom he/she has appeared but the said witness shall not be called interested witness in judicial sense unless element of interest or favouritism on the face of circumstances is evident. If evidence of such witness creates doubts of favoritism in the mind of contesting opponents, then such evidence may not, be admissible unless corroborated by other pieces of evidence.

34. Moreover, I think that concept of interested witnesses as was embodied in the repealed Evidence Act, 1872 (hereinafter referred to as the Act or the repealed Act) appears to have been changed after the promulgation of The Qanun‑e‑Shahadat Order 1984 (hereinafter referred to as the Order 1984 or the said Order). It can be said by the learned advocates, that apparently there is no difference between the repealed Act and the Order 1984 but I have certain reservations regarding such claim and the same are being discussed in the forth‑coming paragraphs.

12. According to my point of view, the Qanun‑e‑Shahadat Order, 1984, except with few exceptions, and the repealed Evidence Act, 1872, are subjectively the same but objectively they are poles apart. It is an admitted position that all Articles of the Order 1984 are substantially and subjectively mere reproduction of all sections of the repealed Act with exceptions of Article 3, Articles 4 to 6 (with reference to Hudood), addition of Article 44 and addition of a proviso to Article 42 if compared with corresponding sections of the repealed Act. Similarly the term "Qanun‑e‑Shahadat" is only an Urdu or Arabic translation of English term "Law of Evidence". Thus, replacement of title "The Evidence Act, 1872" by a new title "The Oanun‑e‑Shahadat Order, 1984" was also subjectively the same. It can be safely said that Zia's Martial Law's Regime's legislators possessed specific politically influenced sub continental or Indian Brand Islamic approach for slogan‑dressed Islamization especially to tell people of the sub‑continent that they were the real champions of Islam. But the approach of their championship for Islam needs no comments after looking into this reality that they did not like to substitute the words "Pakistan, Arabia, Mekkeh.or Madina in place of words Europe or London, which are still existing in the Order, 1984 although names of cities such as Peshawar, Karachi, Lahore, Faisalabad and Multan were or had already been substituted in place of Calcutta, Bombay, Agra or Delhi (Reference can be made to illustrations of Article 23, 46, 61 and 149 of the Order).

13. Notwithstanding, to the abovementioned mental attachment of the legislators of Martial Law Regime with Europe or London, perhaps due to their more than 125 years old slaved mentality or cordial relations with old masters of U.K. the Judges of the superior Courts can deduce something good and appreciable out of the said Order 1984. As a result of search of such emblem and destination, it was found that the Oanun‑e‑Shahadat, 1984 was objectively totally different from the repealed Evidence Act. The object of the Qanun‑e‑Shahadat Order is evident from its preamble which had never been the object of the repealed Evidence Act. With reference to the preamble, intention or object of introducing the said Order, as stated therein, was to bring the Law of Evidence in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Whether the legislature had worked with cordiality to achieve that aim or not, it can be easily ascertained after going through the order and the Act which are subjectively tire same as pointed out in the above paragaaphs. However, with reference to the objects as embodied in the preamble it can be said with certainty that interpretation of all Articles of the Order, after its promulgation, must be done in conformity with the Injunction of Islam as laid down in the Holy Qur'an and Sunnah instead of adopting old interpretations of the repealed Act blindly which had been advanced on the basis of Anglo‑Saxon Principles of Evidence.

14. It may be interesting to point trot that basic principles of 'Law of Evidence seem to be basically' similar throughout the world as is clear from the following:

(a) The Laws of Manu (Sacred Books of the East):

35. Non‑Muslims in India not only consider but also claim that the Laws of Manu include translations of the roost important works of the seven non- Christian religions vi. Hinduism, Buddhism, Jainism, Zoroastrainisim, Islam and two main indigenous systems of China. The relevant sections from its Chapter VIII (Civil and Criminal La) run as under:‑‑

36. ' Section 62:

37. Householders, men with male issue, and indigenous (Inhabitants of the country, be they) Kshatriyas, Vaisyas, or Sudras, are competent, when called by a suitor, to give evidence, riot any persons whatever (their condition may be)' except in cases of urgency.

38. "Section 64:

39. Those must not tic: made (witnesses) who have air interest in the suit,' nor familiar (friends), companions, and enemies (of the parties), nor (men) formerly convicted (of perjury), nor (persons) suffering under (severe) illness‑, nor (those) tainted (by mortal sin).

40. Section 66:'

41. Nor one wholly dependent, nor one of bad fame, nor a Dasyu, nor one who follows forbidden occupations, nor an aged (men) nor an infant, nor one (man alone) nor a man of the lowest castes, nor one deficient in organs of sense "

42. Although basic qualifications of witnesses in the above. sections appear to be the same as are found in the Holy Qur'an and Ahadith of the Holy Prophet (peace be upon him) as would be discussed later on, yet collective effect of Chapter VIII of 'the Laws of Manu shows that influence of caste system could not be washed away from that society. Contrary to this aspect Islamic System of Justice has no scope for caste‑system in it although several persons claiming to be descendant of the Holy Prophet (peace be upon him) claim or consider themselves to be superior than others.

(b) OLD TESTAMENT AND NEW TESTAMENT :

43. According to the old Testament (claimed to be Taurat) God is Himself Witness and is the Supreme Witness (reference can be made to John 1: 6‑9 and Job 16: 8 & 19). Therefore, it is considered‑that witness of men; after taking oath should appear as witness to God. However; in every age we find that lusty people appeared even against the prophets, at the instance of cruel ruler and sectarians to give false statement or evidence against the Prophet. Like the Old Testament, the New Testament. (claimed to be Inject) condemns false witness. The trial of Jesus is the best example to show the character of those witnesses (MA'I l RENV 26: 56‑65). Law of Evidence in the Holy Bible is as under:‑‑.

44. From Old Testament:

45. A truthful witness gives honest testimony but false witness tells lies (Proverb 12:17)

46. A false witness wilt not go unpunished and he who pours out lies will perish (Proverb 19:9)

47. Except the general or universal principle' of evidence, as quoted above, I could not find anything specifically on the point of admissibility or inadmissibility of evidence of close relatives appearing against or in favour of relatives. In the light of abovementioned position, it is interesting to point out that in England., husbands and wives were considered to be incompetent witnesses to give evidence in favour of each other till tire middle of 19th century. This 'concept was totally similar to the view, of the Hanfis in Islamic WViId, but it was changed later on.

48. On 1st September 18'72, when the rulers of Sub‑Continent, introduced the Evidence Act, it contained section 120 which runs as under:

49. "Section 120 :

50. In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal . proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness."

51. Thus, the new concept under section 120 of the repealed Act was similar to the views of the Shias and "Shaft's".

52. On 26th October, 1984, when the Evidence Act was repealed and the Oanun‑e‑Shahadat Order, 1984 was promulgated, section 120 of the repealed Act was not reproduced in the Order, 1984. Omitting section 120 of the repeated Act in the Order_ 19254 was not meaningless. It can be presumed that either the drafters of the Order, 1984 basically belonged to the Sunnis Sect, therefore, they considered it necessary. to omit the said section from being introduced in the Order, 1984 or they themselves were not definite about the exact scope of evidence of husband in favour of his wife or vice versa. However, second presumption seems to be more closer than the first one and accordingly the same question was left for the Courts to decide the same" c Holy Quran' and Ahadith of Holy Prophet (PBUH) ;

53. The Holy Qur'an and the Ahadith of the Holy Prophet (peace be upon him) are fully saturated to explain the law of evidence in Islam and it iv important to, point out that the basic principles are not disputed by any scholar of any sect.

54. It may not be feasible to give reference of all verses of the Holy Qur'an or to reproduce all Ahadith of the Holy Prophet (peace be upon him) in this judgment which are usually quoted by different people while discussing the issue in hand. However, I consider the following references may serve the purpose of understanding the real concept of evidence in Islam.

55. Verses of the Holy Qur'an;

1. SA:135. O ye who believe.

56. ‑

57. Stand out firmly

58. For justice, as witnesses;,

59. To Allah, even as against

60. Yourselves, or your Parents.

61. Or your kin, and whether ,

62. It be (against rich or poor)

63. For Allah can best protect both

64. Follow not the lusts

65. (Of your hearts), lest ye

66. Distort (Justice) or decline

67. To do justice, verily

68. Allah is well‑acquainted

69. With all that ye do.

2. S.5:8. O ye who believe!

70. Stand out firmly

71. For Allah, as witnesses

72. To justice, and let not

73. The hatred of others

74. To you make you swerve) ,

75. 'To wrong and depart from

76. Justice. Be just: that is to Next to Piety: and fear Allah

77. For Allah is well‑acquainted with all that ye do'

78. (S.VIII: 28) And know ye'

79. That your possessions

80. And your progeny

81. Are but a trial; ,

82. And that it is Allah

83. With Whom lies

84. Your highest reward.

85. Ahadith of the Holy Prophet (peace be upon him)

86. Narrated by Umar‑bin‑Shoaib :'

87. "Evidence of those males or females is not admissible who are guilty of breach of trust or adulterer or adultren or enemy even if brother, ‑ or dependent of house‑holder

88. (means slave, servant, wife, G‑9 by. I. children etc.) (Abu Dawood)

89. Narrated with reference to

90. Umer‑bin‑Al‑Khatab:

91. "People of my period are the best, than those who come after them (means next'' generation) then those who come after them (mean third, generation). After that falsehood will prevail to such extent that people would testimony even if not called do testimony and would start taking oath even if not called to take oath:'

92. (Jams Tirmazi Abwab‑e‑Shahadat)

17. On the bases of verses of the Holy Qur'an and the Ahadith of the Holy Prophet (peace be upon him), the Muslims have unanimous view regarding admissibility of evidence of relatives against relatives but there is difference of opinion regarding admissibility of evidence, of relatives in favour of relatives. The "Hanaf's" doctors of law consider that evidence of close and blood‑related persons in favour of relatives is inadmissible. Contrary to this view, the "Shaft's" and the "Shins" schools of thought are of the view that such evidence is valid and admissible.

93. So far as the "Hanifis" are concerned they are of the view that verse of the Holy Qur'an clearly shows the admissibility of evidence of relatives against the relatives and the Ahadith further confirm that evidence of dependents in favour of their house‑holder should not be accepted or be not treated admissible.

94. The contrary view was discussed by Ibn‑e‑Qayyam‑Al‑Juzia (Shamshuddin Abu Abdullah Muhammad Bin Abu Bekr bin Ayub A1 Zaree who died in 571 A.H.). In his scholarly work known as Aulamul‑Moqieen‑an‑rabil‑Aulmeen) Ibne Qayyum‑Al‑Juzia tried to prove, with 'strongly‑worded arguments, that evidence of close relatives is favoy of relatives is admissible., According to Ibn‑el‑Qayyam‑Al‑Juzia all Verses of the Holy Qur'an are general on this issue and there is not a single verse which may‑have prohibited the relatives to stand witnesses in favour of their relatives.

95. It was also claimed by the great scholar of his time that Hazrat Umar bin‑Al‑Khatab, Hazrat Umar‑bin‑Abdul Aziz, Qazi Shurih, Hazrat Abu‑Baker bin‑Muhammad‑bin‑Umar‑bin‑Hazm have always treated evidence of relatives in favour of relatives admissible. (Contrary view of Qazi Shurih was mentioned by Allama Jalaluddin Sayuti in his book of history known as "Tarikhul Khulafa"). Ibn‑ul‑Qayyam was the great scholar of his time who discussed the opposite view in detail by taking into consideration the possibilities of partiality, favouritism, kinship, interest etc, which can render any testimony untrustworthy. But with profound respect for the great scholar in can be said with certainty that moral degradation in the present age, especially in the sub continent was not so common during the age of lbn‑ul‑Qayyam. Hence it would neither be useful nor feasible to reproduce all what was stated by Ibn Qayyam in his scholarly work except to say that the views expressed by the great scholar were not without force.

96. However, Constitutionally being bound to follow the law of the country, every Judge is bound to deal each and every matter in accordance to the relevant provisions of law prevailing in the country i.e. the Qanun‑e Shahadat Order, 1984.

18. Unfortunately the Qanun‑e‑Shahadat Order, 1984 promulgated . on 26th October 1984, does not remove this difficulty. Article 3 of the Order which is relevant to the abovementioned issue runs as under:‑‑

3. Who may testify. ‑ All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them; or from giving rational answers to those questions, by, tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind:

97. Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence:

98. Provided further that the provisions of the first. proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways:

99. Provided further. that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness, and, where such witness is not forthcoming, the Court. may take the evidence of a witness who may be available.

100. Explanation. ‑ ‑A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

101. Article 3 of the Order, 1984 was introduced in place of section 118 of the repealed Act. Three provisos to Article 3 of the Order were not existing previously with section 118 of the Act otherwise both are the same.

102. A bare reading of Article 3 of the Order, 1984 shows that all persons, i no matter they are relatives or not, are competent to give evidence if‑‑

(a) (i) they possess physical ability of understanding the questions put to them; and

(ii) they give rational answers to these questions.

103. If any witnesses are prevented from understanding . the questions put to them or from giving rational answers due to tender years, extreme old age,' disease whether of body or mind or another cause of same kind or due to lunacy (as per illustration in Article .3 of the Order) then he/she may not be treated to be a competent witness.

(b) Second condition of competency, other than the physical ability pertains to moral qualities of a witness. It require a witness to give evidence which should always be free from fear, favour, hatred, bias, love, lust, . affection and enmity. Regarding 'this condition of competency third proviso to Article 3 of the Order. makes it I imperative for the Court to determine the competence of a witness in accordance with the qualification prescribed icy, the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In case such witness in trot forthcoming, the court may take the evidence of witness who may be available

19. Although it was mentioned in the 3rd proviso to Article 3 of the Order, 1984 that the Court shall determine the competence of a witness in accordance with qualifications prescribed by the injuctions of Islam as laid down in the Holy Qur'.an and Sunnah for a witness yet the details of such qualifications were avoided to be mentioned in the Order 1984. Perhaps it was presumed by the legislators that most of the Presiding Officers of the Court were well‑conversant with the Holy' Qur'an and the Sunnah on the law of Evidence. So far as the Holy Qur'an is concerned no believer has any dispute on its universalism but this bitter reality cannot be denied that several books of A hadith which are recognized by one sect are usually not accepted by other sects. Moreover starvation of real scholars in the. present age has increased the number of compilers who presented their books or booklet in accordance to the views of any specific Imam. Such kind of compilation has done no service to humanity but has only strengthened sectarianism.

104. So far as the Judges of Courts are concerned they are not supposed to follow any specific imam, spiritual leader or religious sect, even in spite of their deep attachment with them. Judges belong to an elite of erudites who are expected tea work as thinkQ~s ailed its capacity o;f Juagv., cat an Islamic Stag: trey are bounull to judge which v=iew of the Must‑' in scholars is closest to unixc rsatism because Islamic principles of justice are universal in their nature and sectarianism of parochialimi, do not have any scope in it. They are also 'expected to possess faculties of cogitation to harmonize conflicting views of scholars with the help of juristic deductions including Qisas, Istihsan, Istidlal and Ijtihad. Although it is stressed from certain religious corners that doors of Ijtehad (juristic exposition) had been closed since long but no one tells:‑‑

(i) Who closed the door of Ijtehad?;

(ii) When they were closed?;

(iii) Is there any verse of the Holy Qur'an or Hadith of the Holy Prophet (peace be upon him) according to which Ijtehad had to come to an end at any state?;

(iv) If doors of Ijtehad are closed, then what source is left for legislation to meet new problems to be faced by any nation?;

105. I think that doctrine. of Imam Shafi's that "the voice of people is the voice of Allah Almighty" possesses universal characteristics which curbs the sectarian's approach of any sect on the issue Of Ijtehad. I am of the view that legislation done by chosen representatives of people ,legislative assemblies and juristic deduction by the Judges of Courts on the bases of juristic equity anti public good symbolizes the said concept of Imam Shah.

106. 20, Adopting any of the extreme views and ignoring the outer views of different sects would amount to putting the Judicial seat to legalize and justify sectarianism. I am of the view that by taking into consideration the whole discussion of the foregoing paragraphs judicial harmony on this vital issue can be achieved lay putting aside the sentiments of sectarianism. The outcome of the above discussion can be summarized in‑ the following few lines beat this summary ,persuasive in its nature for other Judges of the Hon'ble High Court unless a seal is put by the Honourable Supreme Court to uphold the same:‑_

107. "Evidence of a witness is for Justice to Allah (S,4.135) or for Allah to Justice (S::8). Therefore, combined effect of the two verses of the Holy Qur an shows nothing except that evidence in its real sense is neither for favouring nor opposing any party but is to promote Justice for the sake of Allah Almighty. Therefore, at the time of 'giving evidence a witness should riot hesitate tot testimony even against his/her own interest or the interests of his/her close relatives because protection of interests of any party ties with Allah (S.4:1). As Justice is next to piety, therefore any person, no matter he/she is of any faith, can be symbol of piety if Justice is done by that person. Moreover, Justice is not the fief of any nation, thereof; piety also mot be the fief of any class of believers or athiestsa peal Justice can only a done when witnesses give, evidence based or. truth: hire evidence of a witness reflects enmity, bias, lover lust etc. against or in favout of a person then such evidence is net admissible. If evidence of a witness in favour of a party is not objected by or no doubt is expressed about the evidence of that witness by the opposite‑party then such evidence be treated admissible provided the Judge of the Court is also satisfied that the evidence f that witness is free froth partiality, favoritism and inducement etc, If the evidence of such person created some doubt in: the minds of common person about partiality or favoritism, then the same may not be treated admissible unless corroborated by outer pieces of evidence. Same is the position of evidence of slaves or servants in favour of their roasters, wives in favour of their husbands or children in favour of their parents arid vice versa provided they are dependent upon the house‑holders.

108. As the moral degradation in the present age is at its climax, therefore, it would be proper riot to accept evidence of relatives in favour of relatives when there is no corroboratory evidence to support the same." ‑

109. The above summary can be read with the cases quoted in different Books of History as well as from the judgments of the Supreme Court. For example, Tareekhul‑Khulafa by Allama Jalaluddin Syuti published by Madina Publishing Company, Karachi mentions a case on page 273 with reference to Durraj between Hazrat Ali versus one Jew regarding ownership of one armour tabled before Qazi (means a Judge) namely, Hazrat Shurih. Hazrat Ali (R.A.) had claimed that the armour in dispute. which was in possession of the Jew was his lost armour while the Jew claimed that he was the owner of that armour. Witness produced by Hazrat Ali (RA.) in support of his claim were his slave Qambar as well as his son Hazrat Hassan (R.A.). The opponent was a Jew who had different faith as of Hazrat Ali and he could propagate that a Muslim Judge had favoured the. Muslim Caliph of Holy Prophet Hazrat Muhammad (peace be upon him). The Judge was not w ready to accept their evidence because it was evidence of closely related persons in favour of Hazrat Ali without any corroboratory evidence and not, against the interest of claimant. There is no doubt and even the Judge had no doubt that the claimant and his witnesses were speaking truth and nothing but truth but it was against the basic principle of Justice regarding the concept of interested witness and the decision in favour of Hazrat Ali could become a precedent for future besides giving a weapon in the hands of enemies to propagate against independence of Judiciary in Islam. It is notable that claimant and his witnesses were among the Sahabies (Companions of the Holy Prophet, peace be upon him) while the Judge namely Qazi Shurih was a "Taubie" (means belonging to the next generation of Sahabies). .

110. Another example is the status of "approver's evidence", which can be ascertained from the famous case of State v. Zulfiqar Ali Bhutto (PLD 1978 Lahore 523). Actual murderer in that case had become approver he was interested to save his life by serving the interests of Zia's Martial Law Regime to assassinate Mr. Zulfiqai Ali Bhutto. Before assassination of this Great Leader, General Zia introduced Shariat Benches of Superior Courts to show that he was determined to bring Islamic Laws in Pakistan. When status of approver was challenged before the said Shariat Bench at Karachi, the petition was admitted for regular hearing and notices were issued to the Federation of Pakistan. However, when the application for stay of execution was moved before the said Bench it could not be heard because of member of the said Bench (Mr. Justice Dr. I. Mahmud, as he then was) had fallen ill and the Honourable Chief Justice (Mr. Justice Abdul Kadir Shaikh, as he then was) of the Sindh High Court had not agreed to constitute a new Bench on the day when the same was fixed for hearing. Resultantly, the dawn of the next day brought the news of assassination. Shariat Benches of Superior Courts were abolished and replaced by Federal Shariat Court. All pending Shariat Petitions, including the one mentioned above, Were heard and disposed of by the Federal Shariat Court vide main judgment written by Mr. Justice Aftab Hussain who had. also written the judgment in the case of State v. Zulfiqar Ali Bhutto (supra). After about12 years from 1979 the Federal Shariat Court decided the scope of approver in Islam which could be easily decided before the assassination of Mr. Zulfiqar Ali Bhutto. True scope of approver's evidence with reference to the concept of Interested witness can be ascertained from the judgments reported in PLD 1978 Lahore 523, PLD 1979 SC 53, PLD 1980 FSC 1, 1983 SCMR 1127, PLD 1989 SC 633, PLD 1991 FSC 139 and 1994 SCMR 932). In the light of weighty observations made by the Honourable Judges of the superior Courts, I have the least hesitation in my mind to hold that the P.Ws. who deposed against the present appellant in this case were not interested witnesses from any angle whatsoever because neither any interest of those witnesses was apparently evident nor the appellant or the defence had brought into light any possible or expected interest of those persons at any stage of the case.

21. After going through the evidence recorded by the trial Court and considering the circumstances and facts which remained unshattered during cross‑examination, no room is left for any sensible person but to believe that it was only Muhammad Din who had fired upon deceased Abdul Rahim. It is notable that no defence theory was advanced on behalf of the appellant during cross‑examination of ,the witnesses except a crippled stand taken at belated stage when statement of appellant was recorded under section 340(2), Cr.P.C. on 15‑4‑1993. Relevant portion of the statement runs as under:‑‑

111. "In year 1987 he (means complainant Muhammad Miskeen) requested me to get one house constructed in my supervision situated at sector 9 Nai‑Abadi Muhajir Camp. I supervised the construction and completed the same .till year 1988 when the said Miskeen levelled allegation of misappropriation of funds against me, the dispute was placed before the Jirga which declared me innocent and one Rahim Chacha (who) was elder of the both, insulted the complainant for levelling false allegation against me on which the complainant was annoyed with me and issued threats for taking revenge. Unfortunately his brother was shot at the hands of some unknown person and he found a good chance for taking revenge from me and thus implicated me in this false case. I am innocent. I have committed no offence."

112. This defence theory is not too convincing to be believed on several grounds which can be summarized as under:‑‑

(i) Muhammad Miskeen, against whom this story was concocted, did not support the prosecution and tried to safe the appellant by suppressing his name while deposing in the Court.

(ii) This defence did not disclose anything why other. P.Ws. deposed against the appellant.

(iii) No question was asked or suggestion was put to any P.W. at any stage in support of this defence story/theory.

(iv) No member of Jirga was examined in support of this defence and to corroborate the version of the appellant.

22. Persuant to the above discussion, I hold that conclusion of guilt regarding factual aspect of firing by the appellant upon the deceased arrived at by the learned trial Judge against the appellant is so well‑founded that it needs no interference. But, with reference to other factual aspects such as 1 close‑blood relationship of the appellant with the deceased, doubtful motive, no proof of previous enmity, firing only one bullet from a revolver which contained other bullets too d peculiar circumstances of the case as reflected, from the evidence do not leave any doubt for me to believe that the appellant injured the deceased with the knowledge that his act of firing was likely to cause death although he had no intention to cause his death. If he had y such intention, he could have fired the remaining bullets contained in his revolve.

23. The accumulative effect of all what has been discussed above, in the light of roles played by each character of prosecution story, brings the conclusive episode of this appeal to an end with the following conclusions and decisive order:‑‑

(e) (i) Lesser penalty of imprisonment of ten (10) years would better serve the ends of justice, in peculiar circumstances of the case. Hence the same is imposed instead of upholding the sentence of i imprisonment of life on account of my view that act of the appellant attracts section 304, P.P.C. and not section 302, P.P.C. (as they were prior to the promulgation of Oisas and Diyat Ordinance).,

(ii) Fine of ks. 5,(X10 (Five thousand) is enhanced to Rs. 20,000 (Twenty thousand only) and in case of non‑payment, the appellant shall suffer '. ' three years' R.I.;

113. ` But

(iii) The appellant is ordered, in term of section 544‑A, Cr.P.C. to pay. .; compensation of Rs.2,00,000 (Rupees two lac only) instead of Rs. 25,000 to the legal heirs of the deceased or to suffer five years' R .I.

114. Except the sentence of non‑payment of compensation to the legal heirs, the remaining two substantive sentences as mentioned in paras. a(il anti a(ii) above shall run concurrently. In case the amount of fine and compensation is paid by the appellant, the entire amount should be paid to the legal heirs 61 deceased Abdul Rahim after their proper verification by the District and Sessions Judge in whose jurisdiction they are residing;

115. (b)‑ The appellant is entitled to the benefit of section 382(1), CrP.C.

(c) Although. offence,, in - this case, was committed prior to the promulgation of Qisas and Diyat Ordinance but proceedings were completed after the said Order came into force. Hence the right of compromise would be available to the parties. .

(d) If any of the legal heirs pardons the appellant, then only the sentence of compensation mentioned in para. a(iii) above would be reduced to the extent of his/her share.

116. With the above modification in the sentences, the appeal is dismissed.

117. N.H.Q./M-2083/K Order accordingly.