THE STATE Versus MUHAMMAD SABIR alias SABRI

1. IFTIKHAR HUSSAIN BUTT, J.‑‑‑ The above titled reference and appeals arise out of the same incident and judgment, therefore, these have been consolidated and will be disposed of by a single judgment.

2. The facts concisely stated are that Haji Mithoo Khan, the complainant, lodged a written report at Police Station, Khuiratta alleging therein that on 17‑11‑1997 at 2‑45 p.m. Muhammad Sabir alias Sabri, Khali Shabbir alias Khani, Muhammad Rafique alias Rafi sons of Faqir Muhammad, Muhammad Jameel son of Razzaq and Mst. Sundal Begum w/o Faqir Muhammad having a criminal intent in furtherance of their common intention committed a criminal trespass. Muhammad Rafique, accused, started ploughing the land of the complainant. At that time the other, accused/persons Muhammad Sabir alias Sabri and Khan Shabbir alias Khani armed with Kalashnikovs while Muhammad Jameel armed with pistol were standing in their house which is situated nearby the place of occurrence. The complainant along with his son Muhammad Zaman went at the spot to forbid him at which Mst. Sundal Begum, accused raised a Lalkara and asked the accused/persons to do away with the life of Muhammad Zaman, whereupon the other accused/persons after raising a Lalkara launched an attack. Muhammad Sabir, accused fired a shot with Kalashnikov upon Muhammad Zaman which hit on his left shoulder and armpit whereas Khan Shabbir, accused also fired two shots with Kalashnikov which hit upon the left rib and left thigh of Muhammad Zaman who after receiving the shots got injured and fell down upon the earth. Muhammad Jameel, accused fired a shot with his pistol upon the complainant but it missed the target. Muhammad Rafique pelted a stone upon the complainant which hit upon his left arm. The complainant, in order to save his life, fled away from the scene of occurrence and went home. The accused/persons continued firing shots for a long time to create terror. In the meantime, Muhammad Zaman has been rolling about restlessly at the spot. When the accused/persons stopped firing, the complainant took Muhammad Zaman to his house, who after sometime succumbed to the injuries. The occurrence was also witnessed by Muhammad Anayat son of Muhammad Din, Muhammad Latif alias Pulla son of Karam Din, Mst. Shamim Akhtar wife of Muhammad Zaman and complainant's daughter Mst. Salamat Kousar.

3. The motive behind the occurrence has been stated to be a dispute of land which was purchased by the complainant from Noor Hussain, two years prior to the occurrence.

4. On this report, a case under sections 302, 327, 337‑F, 447, 147, 148 and 149, APC was registered by Shabbir Ahmad, S.‑I., Police (P. W. 19).

5. On 17‑11‑1997 after arriving at the spot, Shabbir Ahmad, S.‑I. (P.W.19) prepared an inquest report Exh.P.Y. On the same day, the blood‑stained clay and grass (vide recovery memo. Exh.P.D.), an empty of Kalashnikov from the southern side of the house of Muhammad Sabir (vide recovery memo. Exh.P.E.), two empties of Kalashnikov from the outer side of the house of Khan Shabbir, accused (vide recovery memo. Exh.P.F.), an empty of .30‑bore pistol (vide recovery memo. Exh.P.G.), a stone weighing one kilo (vide recovery memo. Exh.P.H.), thirty empties of Kalashnikov from the courtyard of Muhammad Sabir, accused, (vide recovery memo. Exh.P.I.), fifteen empties of Kalashnikov (vide recovery memo. Exh.P.J.) and eleven empties of .30‑bore pistol (vide recovery memo. Exh.P.K.) from the backside of the house of Muhammad Sabir, accused, were taken into possession by Shabbir Ahmad, S.‑I. (P.W.I9) in the presence of Ahmad Din (P.W.7) and Muhammad Mehfooz (P.W.8). He also prepared the injury sheets of Muhammad Zaman, deceased Exh.P.Z. and Haji Mithoo Khan, the complainant, Exh.P.Q.

6. After the post‑mortem, on 18‑11‑1997, the blood‑stained clothing of the deceased were taken into possession by said Shabbir Ahmad, S.‑I. Police (P.W.19) vide recovery memo. Exh.P.L. in the presence of the aforementioned witnesses and handed over the dead body to Haji Mithoo Khan, complainant, vide receipt Exh.P.E. The accused/persons were apprehended on 20‑11‑1997. On the same day, Muhammad Sabir alias Sabri, convict‑appellant led to the recovery of Kalashnikov which was taken into possession vide recovery memo. Exh.P.O. attested by Muhammad Nadeem (P.W.9) and Qurban Hussain (P.W.10). On the same day, a .30 bore pistol with two magazines was recovered at the pointation of Muhammad Jameel, accused vide recovery memo. Exh.P.N. in the presence of above mentioned witnesses.

7. On the same day, Shabbir Ahmad S.‑I. Police got prepared the site plan Exh.P.R. Aks Lattha Exh.P.H. and a copy of Khasra Girdawari Exh.P.T. from. Saleem Ullah Khan Patwari (P.W.11).

8. Khan Shabbir alias Khani, accused led to the recovery of Kalashnikov with magazine on 27‑11‑1997, which was secured vide recovery memo. Exh.P.M. attested by Ahmad Din. (P.W.7) and Muhammad Mehfooz (P.W.8).

9. In the light of document Exh.P.V., it was reported by Chemical Examiner vide its report, dated 9‑12‑1997 that the clay, Shalwar, shirt and Bunyan were stained with blood.

10. It was reported by Director Forensic Science Laboratory Punjab, in the light of document Exh.P.W. vide its report, dated 21‑2‑1998, that the crime empties were found to have been fired by Kalashnikovs recovered from Muhammad Sabir alias Sabri, Khan Shabbir alias Khani and the pistol of .30 bore recovered from Muhammad Jameel, accused.

11. The post‑mortem of the dead body of Muhammad Zaman deceased was performed on 18‑11‑1997 by Dr. Muhammad Ishaq, Civil Medical Officer, Rural Health Centre, Khuiratta vide post‑mortem report Exh.P.P. He noticed the following injuries on the ad body of the deceased caused by fire‑arms:‑‑‑

(1) An entry wound on antero lateral aspect of upper part of left arm. It is 8 mm in diameter.

(2) Exit wound of 1.5 c.m. diameter on media aspect of left arm.

(3) An entry wound on left side of chest in mid‑axillary line at the level of 4th rib penetrating into chest cavity. It is 1.5 c.m. in diameter.

(4) Exit wound on right side of chest in posterior axillary line at level of 4th rib. It is 2 c.m. in diameter.

(5) An entry wound of 8 mm in diameter on lateral part of left hypochordium.

(6) An exit wound 3 c:m. in diameter in right lumber region. .

(7) An entry wound on upper part of lateral aspect of left thigh 1.5 c.m. in diameter.

(8) An exit wound on medial aspect of upper Dart of left thigh 4 x 8 c.m.

12. During the investigation an offence under sections 13/20/65, Arms Act was added and a challan was filed against all the accused/persons before District Criminal Court, Kotli on 29‑12‑1997. The accused/persons, during their examination under section 242, Cr.P.C. pleaded not guilty and claimed the trial.

13. Haji Mithoo Khan, the complainant (P.W.2), Anayat (P.W.3), Latif (P.W.4), Mst. Shamim Akhtar (P.W.5), Mst. Salamat Kousar (P.W.6), Ahmad Din (P.W.7), Muhammad Mehfooz (P.W.8), Muhammad Nadeem (P.W.9), Qurban Hussain (P.W.10), Saleem Ullah Patwari (P.W.1‑1), Dr. Muhammad Ishaq (P.W.12), Abid Hussain Constable Police (P.W.16), Javed Akhtar Head Constable, police (P.W.17), Pervaiz Akhtar, S.‑I. (P.W.18) and Shabbir Ahmad, S.‑I. Police (P.W.19) were produced in support of the prosecution case.

14. It will be important to observe that in the light of the dictum of apex Court in a case reported as Muhammad Sarwar and another v. The State and another PLD 2001 SC (AJ&K) 1, the evidence of Mst. Shamim Akhtar (P W.5) and Mst. Salamat Kousar (P.W.6) was recorded separately on 2‑12‑2002 and 13‑1‑2003.

15. After completion of the prosecution evidence, on 13‑5‑2002, an opportunity was provided to the accused/persons to furnish their explanation in respect of all evidence and circumstances adduced against them by the prosecution, during the examination under section 342, Cr.P.C. All the accused/persons pleaded that the false evidence was produced against them on account of enmity.

16. Mirza Muhammad Saeed, Advocate, produced documents Exh.D.A., Exh.D.B., Exh.D.C., Exh.D.D., Exh.D.E., Exh.D.F., Exh.D.G., Exh.D.H., Exh.D.J., Exh.D.K., Exh.D.L. and Exh.D.M. in the defence.

17. Khan Shabbir alias Khani, accused, absconded during recording of the prosecution evidence, therefore, proceedings under section 512, Cr.P.C. were taken against him by the trial Court vide order, dated 2‑2‑2002.

18. After completion of the trial, the District Criminal Court, Kotli awarded death sentence to Muhammad Sabir, accused under section 302(b), APC and 7 years rigorous imprisonment under sections 13/20/65, Arms Act whereas Muhammad Jameel, accused was awarded sentence of 2 years rigorous imprisonment under sections 13/20/65 Arms Act. Muhammad Rafique alias Rafi was awarded sentence of 3 months under section 447, APC with the benefit of section 382‑B, Cr.P.C. whereas Mst. Sundal Begum was acquitted of the charge vide its judgment/order, dated 15‑11‑2003. Muhammad Sabir alias Sabri, Muhammad Rafique alias Rafi and Muhammad Jameel have challenged the aforesaid conviction and sentence before this Court whereas Haji Mithoo Khan, complainant, seeks enhancement of the sentence of Muhammad Rafique and Muhammad Jameel with the request that Mst. Sundal Begum may also be punished, through the counter -appeal. A reference has also been made by the trial Court for confirmation of the death sentence as required by section 338‑D, APC. The aforesaid judgment of the District Criminal Court, dated 15‑11‑2003 is subject matter of the appeals and reference captioned above.

19. Mirza Muhammad Nisar, Advocate, the learned counsel for Muhammad Sabir and other accused/appellants, vehemently argued that the trial Court fell in error while awarding death sentence to Muhammad Sabir and passing an order of imprisonment against Muhammad Rafique and Muhammad Jameel, appellants. The learned counsel further contended that the complainant has' lodged a false F.I.R. because according to the record of Khasra Girdawari no crop could be cultivated in the disputed land because of being a Rohar. The learned counsel also submitted that according to the copy of Khasra Girdawari Exh.P.T., the possession of the complainant was recorded in Rabbi 1997, therefore, the contention .of the complainant that the disputed land was in his possession for the last two years is not reliable. Thus, his deposition about the other facts of the prosecution case cannot be taken into consideration. The learned counsel maintained that Muhammad Anayat (P.W.3) and Muhammad Latif (P.W.4) are not only closely related and interested to the complainant but they are also inimical towards the accused/party and furthermore being chance witnesses their statements are not trustworthy. The learned counsel pointed out that the daughter of the complainant is daughter‑in‑law of Muhammad Anayat (P.W.3). Muhammad Saleem brother of Muhammad Sabir, accused had divorced the sister‑in‑law of Muhammad Anayat (P.W.3), therefore, he is not only interested witness but also nurses grudge against the accused party. The learned counsel also stressed that the aforesaid witness hesitated to answer the question about the possession of disputed land during the recording of his statement. In this regard, he referred to us a note recorded by the trial Court. Thus, according to him, he is not a reliable witness. The learned counsel submitted that according to the F.I.R. Mst. Sundal Begum, accused raised a hollo but according to Muhammad Latif (P.W.4), Mst. Sundal Begutri also pelted stones. The learned counsel pressed into service the submission that according to Muhammad Anayat and Muhammad Latif P. Ws. when the police arrived at the place of occurrence, they did not go there but according to Ahmad Din (P.W.7) and Muhammad Mehfooz (P.W.8), the empties and a stone were recovered on the pointation of Haji Mithoo Khan complainant, Muhammad Anayat and Muhammad Latif P.Ws., therefore, the prosecution case is self‑contradictory and inconsistent which cannot be relied upon. The learned counsel vigorously argued that the above mentioned Ahmad Din and Muhammad Mehfooz, the witnesses of recoveries, are also closely related to the complainant party. According to him, both of the prosecution witnesses were cited as prosecution witnesses in numerous cases registered against the accused party by the complainant party prior to the occurrence, on this account, the statements of the interested and inimical witnesses are not worthy of any credence. The learned counsel laid stress upon the contention that an affidavit Exh.P.M. sworn by Muhammad Latif (P.W.4) to the effect that he is not an eye‑witness of the occurrence, is by itself sufficient to discard his evidence and it also casts heavy doubt upon the prosecution case. The learned counsel frankly argued that the complainant party tried to take over the possession of disputed land on account of which the accused party fired shots from the courtyard of their house whereas the complainant party fired shots while staying in the disputed land, therefore, the empties recovered from the place of occurrence are those which were fired by the complainant party while the empties recovered from the backside of the house of accused party are those which were fired by the accused party. According to the learned counsel, the complainant has miserably failed to establish his possession upon the disputed land whereas the defence has proved its possession in the light of the documentary evidence, thus, the complainant party is trespasser and not the accused party. The site plan and the statement of Saleem Ullah Khan, Patwari (P.W.11) do not render any support to the prosecution version, argued by the learned counsel for the accused/appellants. The learned counsel zealously contended that the medical evidence does not corroborate ocular version, therefore, the statements of the eye‑witnesses are not trustworthy. The learned counsel pointed out that according to the F.I.R. three shots were fired upon the deceased whereas in the light of post‑mortem report Exh.P.P., the deceased received four injuries, in this view of the matter, the deceased was done to death with firing made by the complainant party. The learned counsel agitated that according to injury No. 1 of the post‑mortem report an entry wound on upper part of the left arm is 8 mm in diameter whereas the exit wound is 1.5 c.m. in diameter on medial aspect of left arm which is not possible. The learned counsel argued with vehemence that in case the entry wound is 8 mm in diameter then the exit wound cannot be of 1.5 c.m. in diameter because the shot loses its force when it exists, therefore, the diameter of injury No. 1 should have been less than 8 mm and it could not be 1.5 c.m. According to him, the post‑mortem report negates the prosecution version. The learned counsel also submitted that after 22 days of the alleged occurrence, the empties and the weapons of offence were sent to the fire‑arms expert for examination, therefore, the report of the fire‑arm expert could not be used as a corroboratory evidence against the accused/appellants. The learned counsel further maintained that like ocular version, corroboratory evidence is also of no legal value and being contrary, inconsistent and coming from interested and inimical source cannot be relied upon but the trial Court committed an illegality while taking into consideration the aforesaid prosecution evidence. The learned counsel finally argued that in case the Court reaches the conclusion that the prosecution has established its case beyond reasonable doubt even though non‑recovery of plough and the fact that fatal injury No.3, which has not been attributed to Muhammad Sabir, accused/appellant, are sufficient mitigating circumstances for not awarding the capital sentence to him. In support of the contentions, the learned counsel for the accused/appellants has referred to us the following authorities:‑‑

(1) 1986 PCr.LJ 2007, (2) 1992 SCR 249, (3) 1992 PCr.LJ 2092, (4) 1994 PCr.LJ (AJ&K Sh.C) 393; (5) 1996 PCr.LJ 1817 and 1914, (6) PLD 1999 Lah. 56, (7) NLR 2000 Criminal 364, (8) 2001 YLR 1164.

20. Controverting the arguments raised by the learned counsel for the accused/appellants, Messrs Rafiullah Sultani and Raja Saghir Khan, Advocates, the learned counsel for Haji Mithoo Khan, complainant, submitted that according to the defence version emerging from the cross- examination and suggestions put to the prosecution witnesses, the place of occurrence, the presence of the deceased with the complainant, the presence of the accused party, the fact of firing and the death of Muhammad Zaman by fire‑arm is admitted on the part of the defence and only the manner of occurrence has been disputed. On this account, the burden of proving the different manner of incident and the existence of circumstances bringing the accused party within the exception of defence of property shifts upon the defence. The learned counsel contended that according to the Revenue Record, the disputed land is owned by the complainant which is also in his possession, therefore, an ex parte decree Exh.D.B. does not create any title in favour of the accused party which has already been challenged by the complainant and the suit for setting aside the ex parte decree is pending in the Civil Court. The learned counsel also argued that the accused party neither in their examination under section 24.2, Cr.P.C. nor under section 342, Cr.P.C., has taken the plea of their possession on the disputed land, therefore, they are not debarred from claiming the possession of the disputed land. The learned counsel further maintained that the relationship of the prosecution witnesses with the complainant party is not by itself sufficient to discard their evidence because the P. Ws. are not inimical towards the accused party and their citing as prosecution witnesses in some previous litigation is not enough to ignore the ocular version which is clear, cogent and trustworthy. The learned counsel agitated that an affidavit Exh.D.M. allegedly sworn by Muhammad Latif (P.W.4) cannot demolish the prosecution case because the same has been shown to be purchased by Muhammad Latif on 3‑9‑1990 about seven years prior to the occurrence. Furthermore, Muhammad Latif alias Pulla (P.W.4) did not produce the aforesaid affidavit by himself and after recording of the evidence of the aforesaid P.W. a fake and forged affidavit was filed to prejudice the case of prosecution, therefore, the document Exh.D.M. was rightly ignored by the trial Court. The learned counsel pointed out that P.Ws. have deposed in an unequivocal manner before the trial Court that even after the occurrence, the accused party have been firing shots to create terror and horror on the spot, therefore, the recovery of empties from the backside of the house of accused or from the land has been satisfactorily explained. In this regard, the learned counsel has referred to us the certain portions of the evidence of prosecution witnesses. The learned counsel argued with vehemence that the minor discrepancies appearing in the prosecution evidence do not damage the prosecution story rather these speak of their being natural and trustworthy witnesses. The learned counsel strenuously contended that Khan Shabbir alias Khani, accused has absconded since long, therefore, the fact of his absconsion is another circumstance which proves the prosecution case. The learned counsel pressed into service the submission that the prosecution story has been proved by the statements of eye‑witnesses including the complainant, an injured eye‑witness, which is by itself sufficient to bring guilt home to the accused/persons but the ocular version also stands corroborated by the sufficient corroboratory evidence, therefore, the imposition of death sentence which is a normal sentence for murder, has been rightly awarded to Muhammad Sabir alias Sabri, accused/appellant. He further submitted that the trial Court committed an illegality while awarding lesser sentence to the accused/persons Muhammad Rafique alias Rafi and Muhammad Jameel, who with criminal intent and in furtherance of their common intention committed a criminal trespass and facilitated the crime of murder along with Mst. Sundal Begum, accused, therefore, it was incumbent upon the trial Court to award severe punishment to all the accused/persons mentioned above. The learned counsel also pointed out that non‑recovery of plough is nowise a mitigating circumstance for not awarding the capital punishment whereas according to post‑mortem report and the evidence of Dr. Muhammad Ishaque (P.W.12), the death of Muhammad Zaman occurred in consequence of injuries Nos. 1, 2, 3 and 4, therefore, the contention of the learned counsel for the accused/appellants that injury No.3 being a fatal injury is not attributed to Muhammad Sabir alias Sabri, is misconceived and without substance. In support reliance was placed on the following authorities:‑‑‑

(1) PLD 1984 SC (AJ&K) 82, (2) PLD 1984 Cri. Cases (AJ&K) 167, (3) 1996 PCr.LJ (AJ&K) 1076, (4) PLD 1995 Kar. 469, (5) 1997 MLD 115, (6) PLJ 1998 Sh.C. (AJ&K) 97, (7) 2001 YLR 108, (8) 2001 Appeal Cases 238 and 274, (9) 2001 PCr.LJ 524.

21. Mr. Riaz Naveed Butt, the learned Additional Advocate -General, appearing on behalf of the State, has fully owned and supported the arguments advanced by the learned counsel for the complainant/appellant.

22. We have carefully taken into consideration the points canvassed by the learned Advocates for the parties, after perusing the record made available. The prosecution case rests upon ocular version furnished by Haji Mithoo Khan (P.W.2), Muhammad Anayat (P.W.3), Muhammad Latif alias Pulla (P.W.4), Mst. Shamim Akhtar (P.W.5) and Mst. Salamat Kousar (P.W.6) along with the medical evidence and the incriminating recoveries made at the instance of the accused/persons from the place of the occurrence and the other corroboratory evidence.

23. First of all, we take up the statements of eye‑witnesses. Haji Mithoo Khan, the complainant and injured (P.W.2) has fully supported the prosecution version. He has stated that on the fateful day he was present in the courtyard of his house along with his daughter Mst. Salamat Kousar (P.W.6), his daughter‑in‑law Mst. Shamim Akhtar (P.W.5), Muhammad Anayat (P.W.3) and Muhammad Latif (P.W.4). After half an hour of the midday prayer ( ﺭﻬﻈﺯﺎﻤﻧ ), Muhammad Rafique alias Rafi, accused, started ploughing his land which was already cultivated by him. All other accused/persons were standing nearby their house. Upon which Muhammad Zaman, deceased, went in the land and forbade Muhammad Rafique. The complainant also started walking behind him. At the same time, Mst. Sundal Begum raised a Lalkara to the effect that Muhammad Zaman should of go back alive, whereat Muhammad Sabir alias Sabri fired a shot with his Kalashnikov upon Muhammad Zaman which hit upon his left shoulder. Soon after that, Khan Shabbir alias Khani fired two shots with his Kalashnikov upon Muhammad Zaman which hit on his left rib and left thigh, who after receiving the shots fell down on the ground. Thereafter, Muhammad Rafique pelted a stone on the left arm of the complainant whereas Mst. Sundal Begum also pelted stones on his back. Muhammad Jameel fired shots with his pistol which did not hit him. Meanwhile, the accused/persons have been firing shots in the air for 8 to 10 minutes and when they stopped the firing, he along with his daughter and daughter‑in‑law went towards Muhammad Zaman who was rolling about restlessly at the place of occurrence. He brought him home but Muhammad Zaman succumbed to the injuries after 8 to 10 minutes of the occurrence.

24. The above mentioned statement of Haji Mithoo Khan (P.W.2) has been fully corroborated by the evidence of eye‑witnesses Muhammad Anayat (P.W.3), Muhammad Latif (P.W.4), Mst. Shamim Akhtar (P.W.5) and Mst. Salamat Kousar (P.W.6).

25. Muhammad Anayat (P.W.3) deposed that Muhammad Latif (P.W.4) came at his home who asked him to participate in the religious ceremony arranged by him at his residence, therefore, he went to the house of Haji Mithoo Khan to invite him in the ceremony. They were sitting in the house of the complainant along with Muhammad Zaman, Haji Mithoo, Mst. Shamim and Mst. Salamat Kousar. In the meantime, Muhammad Rafique started ploughing the land which was purchased by Mithoo from Noor Hussain, whereupon Muhammad Zaman forbade the accused/persons, meanwhile Mst. Sundal Begum raised a Lalkara whereat Muhammad Sabir alias Sabri fired a shot with his Kalashnikov which hit on the left shoulder of Muhammad Zaman. After that Khan Shabbir alias Khani fired two shots with his Kalashnikov which also hit upon Muhammad Zaman.

26. Muhammad Latif (P.W.4) testified that on 17‑11‑1997 he had arranged a religious ceremony at his residence. For the purpose he went to call Muhammad Anayat, and he along with Anayat also went to the house of Haji Mithoo to invite him in the religious ceremony. He along with Muhammad Anayat was sitting in the house of Mithoo when Muhammad Rafique alias Rafi started ploughing the land of the complainant. Muhammad Zaman, deceased forbade Muhammad Rafique. Haji Mithoo also went behind him. He along with Muhammad Anayat, Mst. Shamim and Mst. Salamat also went behind them. Mst. Sundal Begum raised a Lalkara whereupon Muhammad Sabir alias Sabri fired a shot of Kalashnikov which hit upon the left shoulder of Muhammad Zaman, after that Khan Shabbir alias Khani fired two shots with Kalashnikov which also hit Muhammad Zaman. Muhammad Jameel fired shots of pistol upon the complainant which missed the target. Mst. Sundal pelted stones from the rooftop of the house while Muhammad Rafique alias Rafi pelted stones which hit upon Haji Mithoo and after the occurrence the accused/persons have been firing shots in the air.

27. Mst. Shamim Akhtar (P.W.5) while supporting the prosecution story stated that on 17‑11‑1997 at about 2‑45 p.m. she along with Muhammad Anayat (P.W.3), Muhammad Latif (P.W.4) and Mst. Salamat Kousar (P.W.6) was present in their house when Muhammad Rafique started ploughing the land. Her husband Muhammad Zaman and Haji Mithoo went towards the place of occurrence to forbid Muhammad Rafique, thereupon Muhammad Sabir alias Sabri fired a shot upon Muhammad Zaman which hit him on the left shoulder and after that Khan Shabbir alias Khani fired two shots which also hit him. Whereas Muhammad Jameel fired a shot of pistol upon the complainant but it missed the target and did not hit him. Mst. Sundal Begum also pelted a stone upon the complainant which hit him on the thigh. Thereafter, the accused/persons have been firing shots in the air.

28. Mst. Salamat Kousar (P.W.6) also corroborated the prosecution tale and deposed that on 17‑11-1997 at about 2‑30/3‑00 p.m. she along with her father Haji Mithoo, brother Muhammad Zaman, Mst. Shamim Akhtar, Muhammad Anayat and Muhammad Latif were present at home. The land had already been cultivated by them but Muhammad Rafique alais Rafi started ploughing their land. When her brother Muhammad Zaman forbade Muhammad Rafique, Mst. Sundal Begum raised a Lalkara and asked the accused/persons to do away with the life of Muhammad Zaman, thereat Muhammad Sabir alias Sabri fired a shot of Kalashnikov upon her brother which hit him on the left shoulder. Thereafter, Khan Shabbir alias Khani fired two shots with Kalashnikov which also hit the deceased. After that Muhammad Jameel fired a shot of pistol upon the complainant but it missed the target. Muhammad Rafique alias Rafi and Mst. Sundal Begum also pelted stones upon the complainant. After the occurrence the accused/persons have been firing shots in the air.

29. It is necessary to note here that Haji Mithoo (P.W.2) has categorically stated that at the time of occurrence Mst. Shamim Akhtar (P.W.5) and Mst. Salamat Kousar (P.W.6) were present at the scene of occurrence but this portion of his statement was never challenged in the cross‑examination, therefore, the presence of Mst. Shamim Akhtar (P.W.5) and Mst. Salamat Kousar (P.W.6) at the place of occurrence as eye‑witnesses shall be deemed to have been admitted by the defence. Our above stated view lends support from the principle enunciated in Wallayat Khan's case PLD 1985 SC (AJ&K) 41 and in Mst. Farooq Bibi's case 1999 CLC 1358 which was also affirmed in a case reported as Abdul Latif v. Safarish Ali Khan 2004 YLR 1663 in the following manner:‑‑‑

30. "So far as the principle laid down in the authorities cited by the learned counsel for the appellant is concerned, it is correct that if the statement of a witness is not challenged in cross‑examination, the same is considered to have been admitted by the opposite side ."

31. A careful scrutiny of the aforesaid ocular version reveals that the deceased was put to death by the firing of Muhammad Sabir alias Sabri, and Khan Shabbir alias Khani, accused/persons, which hit the deceased who after having been injured fell down upon the earth and later on succumbed to the injuries.

32. It will not be out of place to mention here that the mode of cross‑examination especially the suggestions put to the prosecution witnesses by the defence suggest that the place of occurrence, the presence of complainant along with his deceased son Muhammad Zaman, daughter Mst. Salamat Kousar, and daughter‑in‑law Mst. Shamim Akhtar, the presence of accused party, the fact of firing by lethal weapons and the death of the deceased by firing shots have not been disputed by the defence.

33. For instance, it was suggested to Haji Mithoo Khan (P.W.2) at the backside of page 83 of the trial Court file in the following manner:‑‑‑

34. It was again suggested to the said (P.W.2) on page 84 of the' trial Court file as under:‑‑‑‑

35. This position has also been conceded by the learned counsel for the defence during the course of his arguments.

36. It appears from the perusal of the above stated trend of cross -examination, suggestions put to P.W.2 and the arguments raised by the learned counsel that only the manner of occurrence has been disputed by the defence and nothing else. In such state of affairs, the burden of proof shifts upon the defence instead of the prosecution. We are cognizant of the fact that onus of proving the case beyond reasonable doubt is always on the shoulders of the prosecution but in the aforesaid situation the onus of proving different manner of occurrence and the existence of the circumstances bringing the case within any of the general exceptions, will be upon the defence. Our aforesaid conclusion stands fortified by a case reported as Abdul Razaq and another v. The State 1984 PCr.LJ 1039, wherein the following dogma was enunciated in para. 10 at page 172 of the report:‑‑‑

37. "In the case of criminal liability, the onus is always on prosecution to prove its case beyond reasonable doubt. On the charge of murder, prosecution is under duty to prove that the act by which the death was caused, was done with the intention and knowledge. On the other hand, when the incident of murder was not denied but the manner and nature of incident resulting in murder was disputed and the existence of circumstances bringing the case within any of the general exceptions under the Code, was pleaded, the onus of proving different manner of the incident and the existence of circumstances bringing the case within anyone of the general exceptions, was upon the defence."

38. For the sake of arguments if the above stated position is not acceptable, even otherwise the prosecution evidence is clear, cogent and confidence‑inspiring which is sufficient to prove the prosecution version.

39. The learned counsel has laid much stress upon the point (that Muhammad Anayat (P.W.3) and Muhammad Latif (P.W.4) are chance witnesses, who are also inimical towards the accused party, therefore, their evidence cannot be taken into consideration. A careful scrutiny of the evidence of Muhammad Anayat and Muhammad Latif P.Ws. does not smack of any taint, who have categorically stated that both of them came to invite Haji Mithoo Khan to attend a religious ceremony which was being held at the residence of Muhammad Latif (P.W.4), therefore, they witnessed the occurrence. Their presence at the spot is also admitted by Haji Mithoo Khan, Mst. Salamat Kousar and Mst. Shamim Akhtar P.Ws. The fact that they have been appearing as witnesses at the instance of complainant in the cases registered against the accused party prior to the occurrence, is not a valid ground to hold that the prosecution witnesses have deposed against the accused party because of grudge or rancour. The fact of giving divorce to the sister‑in‑law of Muhammad Anayat. (P.W.3) by Muhammad Saleem, the brother of Sabir, Shabbir and Rafique, accused/persons, is also not a strong circumstance to prove animosity of Muhammad Anayat (P.W.3) against the accused party. If Muhammad Anayat (P. W .3) wanted to falsely implicate the accused party, he could have easily nominated Muhammad Saleem, who had divorced her sister‑in‑law, instead the other accused/persons. Therefore, Muhammad Anayat (P. W.3) and Muhammad Latif (P. W.4) cannot be, described as chance witnesses, who have given plausible explanation of their presence at the place of occurrence. In this context, a case reported as Muhammad Ramzan v. The State 1996 PCr.LJ (AJK) 1076) can be referred to, wherein it was opined in para. 17 at page 1087 of the report as under:‑‑‑

40. "Another important point was raised by the learned counsel for the appellant that Shabir and Baker are the chance witnesses, therefore, the Court should be more cautious while relying on the testimonies of the chance witnesses no doubt, the Court should be cautious while relying upon the statement of chance witness, but the question emerges whether Shabir end Baker were chance witnesses? A chance witness is one who has no plausible explanation for his presence near the place of occurrence at the time of occurrence and he just reached on the place of occurrence by way of chance. A witness who gives acceptable explanation for his presence at the place of occurrence cannot be considered as a chance witness."

41. If we analyse the case from another angle for the sake of arguments and discard the evidence of Muhammad Anayat (P.W.3) and Muhammad Latif (P.W.4), even otherwise the prosecution case has been established without any reasonable doubt from the evidence adduced by Haji Mithoo Khan complainant (P.W.2), Mst. Shamim Akhtar (P.W.51 and Mst Salamat Kousar (P.W.6). As. it has already been held that the presence of Mst. Shamim Akhtar (P.W.5) and Mst. Salamat Kousar (P.W.6) has not been challenged by the defence during the statement of Halt Mithoo Khan (P.W.2) and it is deemed to have been admitted by the; accused party. Therefore, the case of the prosecution stands proved by cogent, convincing and trustworthy evidence of the aforementioned prosecution witnesses.

42. The next question which requires consideration is as to whether the evidence of related and interested witnesses can be relied upon or not. It is admitted on the record that Haji Mithoo Khan (P.W.2) is father of the deceased whereas Mst. Shamim Akhtar (P.W.5) is widow of the deceased and Mst. Salamat Kousar is his sister. The eye‑witnesses though are inter se related and also related to the deceased had no such animus so as to falsely implicate or substitute the accused/appellants in the commission of murder. Although the parties have no cordials relationship between them on account of dispute of land and they are` involved in Civil and criminal litigation but it is not humanly possible for a father or a widow or a sister to involve some innocent person in al murder case on account of land dispute instead of real culprit. It is by now settled principle of law that an interested witness is not always a liar or an independent or impartial witness is not always reliable but it is always the value of the testimony which matters. If the conscience of the Court is satisfied that the deposition of a witness is probable, natural, convincing and worthy of credence, it can always be relied upon without' any further corroboration. In this context, reliance can be placed upon a case reported as Muhammad Shafi v. The State PLD 1978 SC (AJ&K) 146, wherein it was opined that if an interested witness is natural witness and his evidence rings true in the context and the circumstances of the case free from any fault and un-contradicted by any cogent circumstance emerging from the case, it must be relied upon as the basis for conviction without any corroboration. The same view was affirmed in the following cases:‑‑‑

(1) Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23, (2) Niaz Ahmad alias Jaja v. The State PLD 1983 SC (AJ&K) 211, (3) Muhammad Khalid v. The State 1992 SCR 249, (4) Abrar Hussain Shah v. The State 1992 SCR 294, (5) Abdul Rasheed and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524, (6) Allahdad and others v. Muhammad Nawaz and others 2001 SCMR 1111.

43. Coming to the instant case, the evidence of eye‑witnesses derives strong support from ample corroboratory and confirmatory evidence. Before adverting to the corroboratory evidence, it will be appropriate to note that conviction can be based on the testimony of ocular version if it is absolutely dependable but the Courts always look for the corroboration as a rule of prudence and caution and in order to exclude every possibility of involvement of an innocent person. The corroboration can be offered by anything in circumstances of a case which could satisfy the mind of the Court that the witness has spoken the truth. (2000 SCR 123).

44. In the present case, Dr. Muhammad Ishaq (P.W.12) testified the post‑mortem report Exh.P.P., who found the bullet injuries caused by a lethal weapon exactly on the same part of the body of the deceased whereat stated by the eye‑witnesses. According to him, all bullet injuries are the cause of death of the deceased and the probable time which elapsed between the injuries and the death is 10 to 30 minutes. At this stage, we also want to resolve an objection raised by the learned counsel for the defence to the effect that according to the F. I. R. three shots were fired upon the deceased whereas according to the post mortem report Exh. P. P. the deceased received four injuries, therefore, according to the learned counsel for the defence the fourth injury was inflicted to the deceased by the complainant party, hence, the prosecution story is not credible. We do not find any substance in the contention of the learned counsel for the defence because it has been sufficiently explained by Dr. Muhammad Ishaq (P.W.12) that the death of the deceased occurred not only on account of injuries Nos. 1, 2, 3 and 4 but injuries Nos. 5 to 8 also played a vital role into his death. Furthermore, the disputed injury has been clearly mentioned in the inquest report Exh. P. Y. and stands proved by the post‑mortem report Exh. P. P. which has also been testified by Dr. Muhammad Ishaq (P.W.12). The learned counsel for the accused/appellants argued with vehemence that according to the post‑mortem report entry wound regarding injury No. 1, on upper part of the left arm is 8 mm in diameter whereas the exit wound on medial aspect of the left arm is 1.5 c.m. in diameter which is not possible because a shot loses its force when it exists: Therefore, according to him, the exit wound cannot be larger than the entry wound. We have given our earnest consideration to the point it may be mentioned that it always depends on the nature of the injury, seat of injury, the position of the victim and the weapon used, and is not necessary in each and every case that the diameter of exit wound should always be less than the entry wound rather generally exit wound is always larger in diameter than the entry wound. Therefore, no conflict has been found between the ocular and medical evidence. However, it may be observed that the medical evidence does not give identity of the assailant but it only proves the weapon used, number and nature off injuries whereas in the present case, it is admitted on the part of the defence that deceased was done to death by shots of Kalashnikovs, who after receiving the shots died immediately. The place of the occurrence, the presence of the prosecution witnesses and the accused party is also admitted, therefore, the medical evidence fully corroborates the ocular version. Thus, the above mentioned argument of the learned counsel for; the defence‑ stands repelled. It will be necessary to mention that medical evidence is type of supporting evidence and when the evidence of eye‑witnesses is cogent, clear and convincing, the medical evidence loses its value and it cannot outwit the ocular version. PLD I 1993 S C 895.

45. The recoveries of blood‑stained grass and clay p. 1 from the place of the occurrence, the kalashnikovs P.49 and P.53 produced by Muhammad Sabir convict/appellant and Khan Shabbir alias Khani the absconding accused, two empties of Kalashnikov P.2 from the place of the occurrence, two empties of Kalashnikov P.3 and P.4, an empty of pistol P.5, empties of Kalashnikov P.7 to P.34, empties of pistol 30 bore P.35 to P.45, a stone P.6 and the blood‑stained clothing of the deceased P.46, P.47 and P.48 provide sufficient corroboratory evidence. The report of the Chemical Examiner Exh.P.V. is also on record which shows that the articles clay P.1, shirt P.46, Shalwar P.47 and vest P.48 are stained with blood. The report of Forensic Science Laboratory Exh.P.W. shows that the crime‑empties recovered from the place of occurrence and the place wherefrom the shots were fired by the accused persons, have been found to be fired by the Kalashnikovs recovered on the pointation of the accused/appellant Muhammad Sabir and absconding accused and by a pistol recovered at the instance of Muhammad Jameel, accused. The aforesaid circumstances are also in nature of confirmatory and supporting evidence.

46. We do not find any merit in this argument of the learned counsel for the defence that by dispatching the Kalashnikovs, a pistol and empties to the Fire‑arm Expert after delay of about 22 days of murder occurrence for its examination, has adversely affected the case of the prosecution. In this context, the learned counsel for the defence placed reliance on a case reported as Nazeer Ahmad v. The State and another 2002 PCr.LJ 149 but the facts of the aforesaid case‑law are quite distinguishable from the facts of the case in hand. In the case referred above, no eye‑witness was available and the recovery of pistol was also found doubtful, therefore, the positive report of Fire‑arm Expert by receiving the recovery articles after delay of 16 days of the occurrence, was not relied upon whereas the present prosecution case has been proved by five eye‑witnesses and recovery of Kalashnikovs on the pointation of Muhammad Sabir, accused and the absconding accused has also been proved beyond any shadow of reasonable doubt coupled with the recovery of a pistol. Even otherwise it has been opined by the superior Courts in numerous cases that sending of recovery articles to the expert with delay can only be termed fatal to the prosecution story provided the defence succeeds to prove malice on the part of the police. If the dispatches found to have been delayed, the said act on the part of the Investigating Officer could be termed as an irregularity committed during the course of investigation. It is by now a settled principle of law that the 'procedural defects, irregularities and sometimes even an illegality committed during the course of investigation shall not demolish the prosecution case nor vitiate the trial 2002 PCr.LJ 1785.

47. We also find little force in this plea of the learned counsel for the accused/appellants that the disputed land was in possession of the accused party, therefore, under the rule of private defence of property, the accused party was justified to defend their possession. A careful perusal of the oral as well as documentary evidence shows that at the time of occurrence of murder, the place of occurrence was in undisputed possession of the complainant, therefore, the accused party was not entitled to enter and plough the land of the complainant. It may also be observed that the ownership and possession of the complainant has been amply proved by oral and‑documentary evidence confirmed by Saleem Ullah Khan Patwari (P. W.11), therefore, the trespasser had no right under law to use force to the extent of killing a lawful occupant and claim a benefit of right of private defence of property.

48. The learned counsel for the accused/appellants further maintained that the complainant has alleged in the F.I.R. that he purchased the disputed land from Noor Hussain two years prior to the occurrence but in the light of the document Exh.D.A., it has been proved that he purchased the land from Noor Hussain and others on 12‑4‑1997 only seven months prior to the occurrence, therefore, his statement cannot be taken into consideration. We have already discussed the statement of the complainant in detail in earlier part of the judgment, however, it may be noted that the aforesaid discrepancy is of a very minor nature which does not either affect the sanctity of F.I.R. or the prosecution case. It has become a routine now‑a‑days to search out as many as contradictions from the evidence under the impression that such discrepancy can be an effective weapon for smashing over prosecution case against an accused. No doubt certain material contradictions can' demolish the prosecution story but each and every type of minor discrepancy cannot be treated too sufficient to uproot charges against accused, therefore, the aforesaid minor discrepancy has no significance as it does not have any affect on the reality of doing away the life of the deceased by accused appellant Muhammad Sabir along with absconding accused in consequence of firing by Kalashnikovs.

49. An affidavit Exh.D.M. relied upon by the accused party does not render any help to them because it is a fake and forged document. The stamp paper has been shown to be purchased by Muhammad Latif on 3‑9‑1990 about seven years prior to the occurrence. Furthermore it was not produced by Muhammad Latif himself, therefore, cannot be relied upon particularly when Muhammad Latif has testified the occurrence in detail.

50. It is quite evident from the record that the defence never raised a counter‑version in their statements recorded under sections 242 or 342, Cr.P.C. The version of the defence emerged from the suggestions made to the eye‑witnesses during the course of cross‑examination. It was suggested to the eye-witnesses that the deceased was put to death in consequence of cross‑firing of the parties and it was also suggested that the complainant party wanted to dispossess the accused party thus, the accused party defended their possession. Resultantly, the complainant party fired upon the accused party and due to the firing of the complainant party the deceased was done to death. On the contrary, the prosecution took a specific version that the deceased was done to death by accused persons by firing shots upon him with Kalashnikovs because they were inimical to the complainant on account of purchase of the disputed land. When both the versions are taken into a juxta‑position and appraised into their true perspective, the version set up by the defence seems to be improbable, concocted and afterthought in view of the evidence and circumstances. We may point out her that the eye‑witnesses were found "Adil" in purgation. The ocular testimony of the prosecution witnesses is truthful and confidence‑inspiring which could not be shattered despite of lengthy cross‑examination of the defence and stands supported by the strong corroboratory and confirmatory evidence. In this manner, it has been amply proved that the occurrence took place in the manner as alleged by the prosecution and not as suggested by the defence. On the above premises of the reasoning the prosecution has brought guilt home to the accused persons. The motive as set up by the prosecution fully supports its version.

51. Let us deal with the final submission of the learned counsel for the, accused/appellants that the fatal injury No.3 has not been attributed to Muhammad Sabir, accused/appellant and recovery of plough has also not been made, therefore, these are sufficient mitigating circumstances for not awarding the capital sentence to him but the trial Court committed an illegality while awarding the death sentence to Muhammad Sabir, accused/appellant. We have carefully attended to the aforesaid submission of the learned counsel for the defence but the argument is found having no substance for the simple reason that the prosecution case has been fully proved by the natural and confidence‑inspiring evidence. It is fundamental rule of criminal jurisprudence that a reason for mitigation should be genuine and be of such which can be said to have provoked the accused to commit the crime or there must exist some mitigating circumstances. The right of defence of property cannot be used as pretence for justifying murder. The mere non‑recovery of plough cannot be made basis for deduction of normal sentence of death. Similarly, it has been abundantly proved that the deceased was put to death in consequence of injuries inflicted by the shot of Kalashnikov attributed to Muhammad Sabir accused too, which according to doctor Muhammad Ishaq "P.W.12) were sufficient to cause death in ordinary course of nature The trial Court after a proper appreciation of the evidence on record awarded death penalty to the appellant Muhammad Sabir, vide impugned judgment which is in view of the above discussion warrants no interference by this Court.

52. So far as the case‑law referred to by the learned counsel for the defence is concerned, it needs no detailed analytical survey because it holds the view that to prove guilt of the accused always rests on the prosecution and if an accused in his defence succeeds to create doubt about the correctness of the prosecution evidence that would be sufficient to warrant an acquittal. In the light of above mentioned principles, we have already discussed prosecution evidence in detail, therefore, the authorities mentioned above are beyond the controversial issue and have nothing common with the facts of the present case.

53. As far as the case of Muhammad Rafique, Muhammad Jameel and Mst. Sundal Begum is concerned, it has also been proved that Muhammad Rafique alias Rafi committed a criminal trespass in the land of complainant with an intent to dispossess him whereas Muhammad Sabir and Khan Shabbir alias Khani having no right under law used a force even to the extent of killing a lawful occupant. In the light of the prosecution evidence, the attribution of firing to Muhammad Jameel accused upon the complainant is doubtful, however, he was rightly convicted and sentenced for having an unlicensed pistol. The allegation of pelting stones against Mst. Sundal Begum, accused could be proved beyond reasonable doubt.

54. It will be useful to mention here that in the statements of prosecution witnesses are not believed regarding Mst. Sundal Begum, Muhammad Rafique alias Rafi and Muhammad Jameel accused/persons, to some extent tile same cannot be disbelieved in respect of Muhammad Sabir alias Sabri, accused/appellant. It is an admitted principle of criminal jurisprudence that the Court has to sift the grain of truth from the chaff of falsehood, therefore, the testimony of prosecution witnesses can be disbelieved against some accused/persons but it can also be relied upon against the others. 2001 PCr.LJ 524.

55. For the foregoing reasons, Muhammad Sabir alias Sabri is found guilty of the offence of murder of Muhammad Zaman, deceased, and the offence of murder liable to "Tazeer" under section 302(b), A.P.C. has been amply proved by the prosecution. We also do not find any mitigating circumstance for lesser punishment to Muhammad Sabir alias Sabri, accused because death sentence being a normal sentence of murder shall meet the ends of justice, whereas an offence under section 447, A.P.C. against Muhammad Rafique alias Rafi, accused and an offence under section 13/20/65, Arms Act against Muhammad Jameel, accused has also been abundantly proved by the prosecution but it failed to prove its store to the extent of remaining offences and also against Mst. Sunday; Begum. Consequently, both the appeals one filed by Muhammad Sabirl alias Sabri, Muhammad Rafique alias Rafi and Muhammad Jameel, accused/appellants and the other filed by Haji Mithoo Khan, complainant, must fail and these are hereby dismissed. The reference is answered in the manner indicated above.

56. H.B.T/8/Sh.C.(AJ&K) Order accordingly.