2019 PLP 2508 (YLR)

SARDAR ABDUL HAMEED KHAN, J.

The above titled appeals have arisen out of the consolidated judgment of the Shariat Court of Azad Jammu and Kashmir dated 03.08.2016, whereby the learned Shariat Court has partly accepted the appeal filed by the convict-appellants in Appeal No.20/2016 and the death sentence awarded to the accused Rana Qamer has been converted/altered into the life imprisonment, the sentence of life imprisonment awarded by the trial Court to the accused Rana Munawar has been altered into rigorous imprisonment of 14 years, whereas the accused Rana Shujah and Rana Nadeem have been acquitted of the charges. The appeal filed by the complainant-appellants has been dismissed while the reference sent by the District Court of Criminal Jurisdiction for confirmation of the death sentence awarded to the convict-appellant, Rana Qamer has been answered in negative. Since both the appeals arise out of the consolidated judgment of the Shariat Court, hence, these are being disposed of through the proposed single judgment.

2. The precise facts giving rise to the present appeals are that an FIR No.55 of 2009, was lodged by the complainant, Shahzad son of Sherzaman at Police Station, Gahrhi Dopatta on 08.06.2009, stating therein that he is resident of village Lawasi. There was a dispute and litigation over a woman between his parents and the accused-party due to which the accused, Qamar and Tanzeel, sons of Shah Zaman, Shuja-ur-Rehman son of Rana Akhter, Haroon son of Rana Yousaf, Ghareeb-ullah son of Rana Bagh Ali, Rana Nadeem son of Rana Muzaffar, Amar son of Rana Saeed, Naveed son of Muhammad Munir Mughal, Zameer Iqbal, Tahir Iqbal and Abid Iqbal sons of Faqeer Muhammad and Ishtiaq son of Hidayatullah resident of Lawasi developed enmity with his family. It is further narrated in the FIR that the father of the complainant was running a shop in Hattaian Dopatta, who as usual on the fateful day after closing the shop was going home, at 8:00 p.m. When he reached near to Nambal Army Camp, the accused with a preplanning reached over there in two vehicles and stopped his father. The accused, Qamar was armed with dagger, who inflicted dagger blows on the body of his father. Rana Shahzad and Naveed were also armed with dagger and 'Churri' . They also with the connivance and abetment of the other accused caused repeated blows on the body of his father, who got injured seriously. Rests of the accused were armed with sticks. After hearing hue and cry, Shahzad (complainant), Umar Farooq and Maroof were attracted to the spot. The accused took complainant's father in injured condition towards Lawasi in Car No. 3498. The complainant and his companions also went towards Lawasi. The accused put his injured father in another Car No.9335. They threw his father near his home and fled away. The complainant brought his father in an injured condition at the relevant Police Station. On this report, a case under sections 147, 148, 149, 109, 341, 324, 337, A.P.C. was registered against the abovementioned accused. As Sherzaman was seriously injured and referred to Hospital, whose dying declaration was recorded by the Police at Civil Hospital Garhi-Dopatta, wherefrom, he was further referred to C.M.H., Muzaffarabad but he succumbed to the injuries. After his death, section 302, A.P.C. and section 13 of the Arms Act, 1965 were also added. The accused, Rana Qamar, Rana Tanzeel, Rana Musawar Hussain alias Ghareebullah, Amer Saeed and Muhammad Naveed were arrested.

3. After necessary investigation, the police found Rana Qamar, Rana Musawar Hussain alias Ghareebullah, Rana Shujah alias Shahzad and Rana Nadeem guilty of the offence and submitted challan against them in the offences under sections 302, 341 and 34, A.P.C. read with section 13 of the Arms Act, 1965 before the District Court of Criminal Jurisdiction, Muzaffarabad vide challan No. 59 of 2009, dated 05.08.2009. However, Muhammad Naveed, Zameer Iqbal, Tahir Iqbal, Abid Iqbal, Muhammad Ishtiaq, Tanzeel, Haroon and Amir Saeed were exonerated under section 169, Cr.P.C.

4. The statements of the accused under section 242, Cr.P.C. were recorded on 18.08.2009. The accused pleaded not guilty and opted to face trial. The prosecution produced as many as thirty three witnesses. The statements of the accused under section 342, Cr.P.C. were recorded on 29.07.2011, wherein, they again pleaded not guilty. After conclusion of the trial, the District Court of Criminal Jurisdiction convicted and awarded the death sentence to the accused, Rana Qamar son of Shahzaman under section 302 (b), A.P.C. and one month's simple imprisonment under section 341, A.P.C. He was also awarded six months' imprisonment under section 13 of the Arms Ordinance. The accused, Rana Musawar alias Ghareebullah was awarded life imprisonment under sections 302(b)/34, A.P.C. and one months simple imprisonment under sections 341/34, A.P.C. and six months' imprisonment under section 13 of the Arms Ordinance. The accused, Rana Shuja alias Shahzad and Rana Nadeem were convicted under sections 302(c)/34, A.P.C. and were awarded 7/7 years' rigorous imprisonment and one month' simple imprisonment under sections 341/ 34, A.P.C. The accused were also ordered to pay Rs. 1,000,000/- as compensation and in case of non-payment, the accused were ordered to undergo for further imprisonment of six months. The convict-appellants were also granted benefit of section 382-B of Criminal Procedure Code. The convict/accused feeling aggrieved from their conviction filed an appeal in the Shariat Court, whereas, the counter appeal was also filed by the legal heirs of the deceased for enhancement of the sentence awarded to the accused. The reference has also been sent by the trial Court for confirmation of death sentence awarded to the convict/ accused Rana Qamar. The learned Shariat Court vide its consolidated judgment dated 03.08.2016 disposed of the appeals in the following manner:- "Therefore, in the light of what has been stated above, reference sent by District Court of Criminal Jurisdiction Muzaffarabad for confirmation of death sentence of convict, Qamar is answered in negative and by partly accepting the Appeal No. 85/2011 death sentence is converted/altered into life imprisonment to the extent of convict, Qamar, while life imprisonment awarded to convict, Musawar alias Gareebullah is also altered to 14 years' imprisonment under section 302(c), A.P.C. Resultantly, appellants Nos. 3 and 4 are hereby acquitted of the charge. Appeal No. 03/2012 filed by the complainant is hereby dismissed." Against the aforesaid judgment the accused, Rana Qamar and Rana Masawar have filed appeal against their conviction, whereas the legal heirs of the deceased have filed the appeal for enhancement/ restoration of the sentence awarded to all the convicts/accused.

5. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the complainant-appellants, in Appeal No. 17 of 2016, argued that the Courts below failed to take into consideration the evidence led by the prosecution. He further argued that the accused-respondents are the member of an unlawful assembly in the result of the act of which an innocent person was murdered. The accused-respondents acted in furtherance of their common intention; therefore, they are vicariously liable to their act and should have been convicted with the capital punishment. He further argued that the prosecution has proved the common intention on the part of the accused-respondents, hence, the judgments of the Courts below are not sustainable in the eye of law. He submitted that the prosecution has produced three eye-witnesses which was a sufficient proof of 'Qatl-i-Amad'. He submitted that in view of the ocular evidence as well as the other evidence, the offence of 'Qatl-i-Amad' was proved, therefore, it was enjoined upon the District Court of Criminal Jurisdiction to award the respondents with the sentence of death as 'Qisas'. He contended that the District Court of Criminal Jurisdiction failed to record any reason while awarding lesser sentence to accused-respondents Nos. 3 and 4, whereas, the prosecution has produced sufficient evidence against them. He further contended that the learned Shariat Court while delivering the impugned judgment has wrongly held that the prosecution witnesses, namely, Shahzad, Muhammad Maroof and Umer Farooq do not fall within the definition of eye-witnesses and failed to take into consideration the evidence of the aforesaid prosecution' witnesses. The evidence of the aforementioned prosecution witnesses was fully corroborated by the recoveries of the various articles but the learned Shariat Court has wrongly held that no role is attributed to accused-respondents Nos. 3 and 4, namely, Rana Shujah alias Shehzad and Rana Nadeem. The learned counsel further contended that according to the Post Mortem report, the deceased also got injuries with blunt weapon i.e. 'Lathi-Soti' which is recovered from the custody of accused-respondents Nos. 3 and

4. He argued that it was a broad daylight occurrence and the learned Shariat Court has wrongly evaluated the prosecution evidence on the basis of 'time of occurrence' which was stated in the FIR to be 8:06 pm. In fact, the time of occurrence was 7:00 pm, in summer days, which is a daylight time. He further argued that the deceased has nominated all the accused in dying declaration and both the Courts below have accepted the same, therefore, the learned Shariat Court was bound to award the sentence of death. The learned Shariat Court failed to record any reason while converting the sentence of death into life imprisonment and the life imprisonment into 14 years' rigorous imprisonment and acquitting accused-respondents Nos. 3 and

4. He further contended that the prosecution has produced three eye-witnesses in support of its version who are trustworthy and fully supported the version of the prosecution but the Shariat Court has discarded their testimony. The learned counsel further contended that the presence of all the three eye-witnesses is admitted and all of them remained consistent on the material points including the scribe of dying declaration. The learned counsel strenuously argued that all the legal heirs of the deceased were not arrayed as party in the appeal, therefore, the appeal of the respondents before the Shariat Court was not competent. The learned counsel further contended that the order of reduction of sentences is not lawful and no any reason for passing the lesser punishments has been recorded by the learned Shariat Court, which is also stranger to the record of the case. He further added that the important points of vicarious liability and common intention have been overlooked by the learned Shariat Court. Lastly, the learned counsel prayed for acceptance of the appeal for enhancement/restoration of the awarded sentences to all the accused/ convicts and also prayed for dismissal of the cross appeal while referring the case law, reported as [2001 SCMR 1474], [1985 PSC (India) 1467], [1994 PCr.LJ 1640], [1998 PCr.LJ 1192], [2001 PCr.LJ SC (AJK) 524], [PLD 1966 SC 122], [PLD 1979 SC(AJ&K) 23], [PLD 1999 Quetta 88], [2000 SCMR 1858], [2001 SCMR 1919], [2002 SCMR 1568], [2003 SCMR 799], [2000 YLR 2861], [2003 YLR 110], [2003 YLR 2926], [1999 YLR 1908] and [2011 SCR 431].

6. On the other hand, Mr. Tahir Aziz Khan and Mr. Mushtaq Ahmed Janjua, Advocates, counsel for accused-respondents Nos. 1 to 4, argued that the prosecution implicated the accused-respondents in a false case. The prosecution case is based on fake and fabricated story which cannot be made basis for conviction of an accused but the Courts below failed to take into consideration this important aspect of the case. They further argued that the accused-respondents are innocent and have no link with the alleged offence and they have been enroped in a false case. Therefore, the convicts-respondents may be acquitted of the charges. They argued that the dying declaration has been maneuvered later on to make the improvements in the case and both the Courts below have wrongly relied upon the same. They submitted that it is an unseen occurrence and blind murder as there is no direct evidence on the record, therefore, the sentences awarded to the convicts-respondents are not sustainable in the eye of law. The Courts below also overlooked the defense witnesses and the record just to extend the undue benefit to the prosecution. They argued that FIR has been lodged after a considerable delay while implicating the convict-respondents in the false case with ulterior motive, therefore, the same is not satisfactory and the conviction recorded by the Courts below is bad in law. The learned counsel argued that the trial Court as well as the learned Shariat Court misread the facts as well as the evidence and passed the capricious, arbitrary and fanciful findings regarding the conviction. The prosecution has suppressed the true facts of the case with mala fide intention. They argued that the medical report including the postmortem report is proved to be maneuvered later on. They further argued that the case of the prosecution is full of doubts as there are contradictions between the documentary evidence and the oral evidence. All the recoveries of the case are false and fabricated. They further submitted that all the Courts below tried to fill up the lacunas of the prosecution's case which is against the principle of law and justice. The learned counsel zealously contended that initially 12 accused were nominated in the FIR, out of which eight were exonerated and only four accused persons were challaned, which is a clear picture of a false case made up in the background of past enmity, which is also obvious from the clever devices of the prosecution by changing the allegation of overt act/fatal injuries and crime weapon with other accused namely Qamar, Shahzad and Naveed and then Musawar, etc. as well as naming of accused in the dying declaration but no eye-witness was named therein while pointing out the statement of Raheema Bibi and other witnesses discussed in detail all the shortcomings of the prosecution case concluded and termed the instant case a clear case of acquittal of the accused persons. They further submitted that the prosecution failed to prove the case against the accused/convicts beyond reasonable doubt. The eye-witnesses produced in the Court are close relatives of the deceased, therefore, on the strength of such evidence the conviction cannot be recorded. They argued that at the same set of evidence the accused-respondents Nos.3 and 4 herein, have been acquitted of the charge, thus, on the same set of evidence the convicts-appellants were also entitled to be acquitted of the charges. They requested for acceptance of the appeal and acquittal of the accused-persons while referring the case law reported as [2001 SCMR 1474], [PLD 1966 PSC 122], [PLD 1979 SC (AJ&K) 23], [1995 PSC (India) 1467], [1994 PCr.LJ 1640], [1998 PCr.LJ 1192], [PLD 1999 Quetta 88], [2000 SCMR 1858], [2000 YLR 2861], [2001 PCr.LJ SC (AJ&K) 524] [2002 SCMR 1568], [2002 SCMR 1842], [2003 SCMR 799], [2003 YLR 110], [2003 YLR 2926], [2011 SCR 431], [2010 SCMR 97], [2010 SCMR 810], [2004 SCMR 1185], [2008 SCMR 6], [2010 PCr.LJ 1593], [2007 SC(AJK) 100], [1997 SCMR 89]. [2015 PCr.LJ 838], [2016 SCMR 274], [2011 MLD 176], [PLD 2006 SC 255], [2005 YLR 2279], [2016 SCR 373], [1994 SCMR 6], [2005 MLD 512], [2008 SCMR 817] and [2004 SCMR 810].

7. Mr. Javed Naz, the learned Additional Advocate-General, appearing for the State, adopted the arguments advanced on behalf of the complainant-appellants and further added that the important parts of the statements of the prosecution witnesses have not been cross-examined, hence, are un-rebutted and the prosecution has brought on record ample proof for conviction and awarding the capital punishment but the Courts below have erred in passing lesser punish-ment. He requested for acceptance of the appeal filed by the complainant-appellants and dismissal of the cross appeal.

8. We have heard the arguments of the learned counsel for the parties at length and perused the relevant record with the assistance of the learned counsel for the parties.

9. This Court normally does not go into the re-appraisement of evidence which has been admitted by the Courts below. But it is well-settled law that if in case the Shariat Court is found to have committed an error of law or has disregarded the well-known principles relating to the appraisal of evidence, resulting into the miscarriage of justice, then this Court has no reluctance to reappraise the evidence for doing complete justice. The appraisal of evidence, especially in a murder case, has always seemed to be the most difficult undertaking which in the nature of things has come to rest on the shoulders of a Judge. In a case reported as Basharat Hussain v. State and another [2016 SCR 1176], this Court while dealing the proposition held as under:- "

11. It is settled principle of law that re-appraisement of evidence is not a function of the Supreme Court. This court does not go into re-appraisement of the evidence, when it has been settled that the first appellate court and the trial court have properly appraised the same and admitted it for reaching any plausible conclusion. However, this court does not hesitate to re-examine the evidence, where gross misreading or non-reading of evidence, any error of law and sheer disregard from principles of appraisal of evidence, which resulted into miscarriage of justice is found committed by the Courts below. Our view find support from the case reported as Abdul Rasheed Gresta and another v. The State through Advocate General, AJ&K, Muzaffarabad and others (2013 PSC (Cri) 732), as under: '

9. This Court normally does not go into the appraisement of evidence which has been admitted by the Courts below. But it is well settled law that if in case the Shariat Court is found to have committed an error of law or has disregarded the well-known principles relating to the appraisal of evidence, resulting into the miscarriage of justice, then this Court has no reluctance to reappraise the evidence for doing complete justice. Admittedly, the case in hand is not a case of direct evidence rather the whole case is based on circumstantial evidence. The appraisal of evidence, especially in a murder case, has always seemed to be the most difficult undertaking which in the nature of things has come to rest on the shoulders of a Judge as held in a case titled Muhammad Aslam and another v. The State [PLD 1978 SC 298], in which it has been held as under:- "It is the well-settled practice of this Court that normally it does not go into the re-appraisement of evidence. But it is equally well settled that if in a case the High Court is found to have committed an error of law or has disregarded any of the well-known principles relating to the appraisal of evidence, resulting in the miscarriage of justice, then the Court has not hesitated to reappraise the evidence in the interest of justice." In the case in hand, the occurrence is admittedly un-seen one and it is based upon in-direct evidence. The learned. counsel for the convict appellant, has raised many objections regarding the credibility and contradictions existing in prosecution evidence and we have observed that this court may re-examine evidence when non-reading and mis-reading of evidence and miscarriage of justice has been alleged or found. Keeping in view the nature of the circumstances of the case, which is an un-seen murder and the convict-appellant and his wife have been implicated on the basis of in-direct evidence, mobile phone record of deceased, and to reach on just conclusion, it is essential for this court to do re-appraisement of evidence."

10. The occurrence as stated by the prosecution took place on 08.06.2009 at 8 O'clock and the police vide FIR No.55 of 2009, registered the case against the convicts/accused at Police Station Garrhi Dopatta. The argument advanced on behalf of the convict-accused is that the prosecution failed to prove the case against the accused/convicts beyond reasonable doubt and the eye-witnesses produced in the Court are close relatives of the deceased. Therefore, on the strength of such evidence the conviction reproduced hereinabove, it is clear that these witnesses remained consistent on the material propositions. However, some minor discrepancies are found which do not thresh out the whole prosecution's case. These witnesses have narrated the pre and post acts constituting the commission of offence spontaneously without any inordinate delay. Such type of evidence is covered under the principle of res-gestae as provided under Articles 18 and 19 of the Qanun-e-Shahadat, 1984, which provide that some facts or the events which may be hearsay but related to the alleged incident are admissible in evidence. Thus, while adjudging the evidence of the prosecution's witnesses with the principle of res-gestae it can safely be concluded that the prosecution proved the case against the convicts/ accused. We are fortified in our view from the recent judgment delivered in the case titled Muhammad Naseem v. The State (Criminal Appeal No.18 of 2017, decided on 22.02.2018), whereby it was held as under:-- "The perusal of provisions of above reproduced articles read with the above discussed pieces of evidence regarding prior and post occurrence facts/ circumstances, it can safely be concluded that the evidence in this case is fully protected by Article 19 supra and the principle of 'res gestae', which is admissible in evidence because some of the facts are hearsay but relevant to the facts in issue. Thus, the appraisal of evidence of the instant case in the light of the principle of 'res-gestae', the prosecution has proved the case, which has rightly been believed by the Court below. Our view finds support from the case reported as Suhail and 3 others v. The State [2001 PCr.LJ 1086 (FSC)], wherein it has been observed as under:-- "In order to crystallize the proposition it would be advantageous to also reproduce herein below illustration (a) to the above Article which reads as under:- (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or, so shortly before or after it as to form part of the transaction, a relevant fact. A bare perusal of the above provision as well as the illustration tagged thereto would lead to the inference that hearsay testimony would be admissible if it is proved that the object of the maker of the statement was to elucidate and explain the circumstances connected with the same transaction provided the possibility of concoction or distortion, to the advantage of the maker or to disadvantage of the accused, is ruled out. Since rest of the statement of P.W.4 is also based on personal knowledge of the witnesses, therefore, we do not find any force in this contention of the learned counsel for the appellants, as well." As we have observed hereinabove that the prosecution proved the case against the convicts/accused, however, the fact remains that where the standard of the evidence is of such nature, on the basis of which capital punishment can be awarded to the convicts/accused or not, has to be seen in the light of the evidence and the material brought on the record. As we have observed hereinabove that the prosecution's witnesses although remained consistent on the material propositions, however, the minor discrepancies are found which constitute the mitigating circumstances and in view of the settled principle of law these mitigating circumstances may be considered for quantum of punishment. In the instant case the time of occurrence is stated as 8:00 p.m. on 08.06.2009 and it is an admitted fact that it is not a daylight occurrence. The statements of the prosecution's witnesses when read with the site plan then it becomes abundantly clear that the distance shown in the site sketch is such from where no one can exactly tell that which of the accused/ convicts inflicted the fatal blow and which of the blow caused the death of the deceased. The distance shown in the site plan is not such as close from where it can be ascertained that the witnesses have clearly seen the occurrence. Thus, the learned Shariat Court while altering/ converting the death sentence into life imprisonment and the life imprisonment into the rigorous imprisonment of 14 years, in the light of the evidence and material brought on record, has committed no illegality.

12. So far as the contention of the counsel for the convicts-appellants that as on the same set of evidence two accused (respondents Nos.3 and 4) have been acquitted of the charges, whereas on the strength of the same evidence the convicts-appellants have been awarded the sentence, which is against the settled principle of administration of criminal justice. Before resolving this point it is pertinent to say that we are not passing through the era when the evidence was tested on the touch stone of truthfulness by following the principle of appreciation of evidence in criminal cases known as "Falsus in Uno-Falsus in omnibus" rather this is the period, where the Courts have to sift the grains of truth from the chaff of falsehood. Therefore, it may be observed here that in criminal cases the Court has to appraise the evidence minutely keeping in view the facts and circumstances of each case and the Court has to sift the grains of truth from the chaff of falsehood. Thus, on the basis of this principle, some portions or the whole statement of a witness can be relied upon against some of the accused and the same portion can be rejected against the other accused persons keeping in view the facts and circumstances of the case. Reference may be made to the case reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others [2002 PCr.LJ 524], wherein it was held as under:- "

17. The Shariat Court was also not correct in holding that as the testimony of the prosecution witnesses was disbelieved regarding respondents Nos. 2 to 5, the same cannot be believed in respect of Abdul Ghaffar, accused-respondent. It is a celebrated principle of law that a criminal Court has to sift the grains of truth from the chaff of falsehood. Therefore, the testimony of prosecution witnesses can be relied upon against some accused while rejected against the others. A reference may be made to the following authorities in support of the said view:-- In a case reported as Zahir Hussain v. Shah Nawaz Khan 2007 PCr.LJ 1757 it was held as under:-- 'The ocular account of the eye-witnesses is also to the same effect that at the time of occurrence the deceased and victim were standing at a distance of about 2 feet from each other. It is also possible that the bullet of revolver while slanting the umbilicus might have travelled to the left buttock from where the exit would it found. The Shariat Court also seems to have been impressed by the fact that the prosecution story becomes doubtful as the eye-witnesses deposed that the deceased after receiving bullet injury by Shah Nawaz Khan accused fell down on the ground and was beaten by accused Aurangzeb and Ran Baz Khan with the butt of rifle but this deposition does not find any corroboration by the medical report or injury sheet prepared by the Investigating Officer. According to the doctor there was only one fire-arm injury on the person of deceased. The mere fact that the evidence of eye-witnesses is not corroborated by medico-legal evidence in respect of Aurangzeb and Rang Baz Khan, accused, we cannot discard the entire evidence of the eye-witnesses. The maxim falsus in uno falsus in omni bus' has since long been discarded by the superior Courts of Azad Jammu and Kashmir and Pakistan. The grain has to be sifted out of the chaff. When main part of the deposition is true, it should not arbitrarily be rejected because of want of veracity on perhaps some minor point. Therefore, where a witness is stated to have given false evidence to implicate some innocent persons besides the real culprits, the whole deposition may not be rejected when the most of evidence which rings true can be legally relied upon.' In a case reported as Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146, it has been observed as follows:-- 'The maxim falsus in uno falsus in omni bus' (false in one particular false in all) is a dangerous one especially in this part of the country for if whole of testimony were to be rejected because the witness was evidently speaking untruth in one or more particulars, it is to be feared that witness might be dispensed with. There is always embroidery to a story, however, true in the main. When main part of the deposition is true it should not arbitrarily be rejected because of want of veracity on perhaps some very minor point (Fields Law of Evidence in British India, 8th Edition XL and XLI). Therefore, where a witness is stated to have given false evidence to implicate some innocent persons, besides the real culprits, his whole deposition may not be rejected when the main portion of evidence, which rings true can be legally relied upon. We are supported in our view in PLD 1977 SC (Pak.)

413. In that case 8 persons were tried by the Additional Sessions Judge, Sukker on a charge under sections 302/307 read with sections 148/149, P.C. and section 13-D of the Arms Act. The Sessions Judge convicted three persons under sections 302/34 and 307/34 and acquitted all the other persons. The three convicted persons went in appeal to the High Court. The State also filed an appeal against the acquittal of the five persons. The High Court dismissed the appeal of the State and allowed the appeal of the three convicted persons. The State went in appeal to the Supreme Court and the Supreme Court convicted Nazo and Abdul Hamid, respondents Nos. 4 and 6 in the case as according to the Supreme Court, their acquittal amounted to grave miscarriage of justice. The appeal against the 3rd accused was however, refused. In a case reported as Khanam v. The State 1968 SCMR 1314, it was observed that the prosecution witnesses were disbelieved regarding three accused persons out of five. On appeal it was held by the Supreme Court that the mere fact that the evidence was disbelieved regarding three accused was no ground to disbelieve the same about remaining two accused.

18. The contention of the learned counsel for the accused-respondents that there are discrepancies between the eye-witnesses as to the date when their statements were recorded under section 161, Cr.P.C. renders the prosecution case doubtful is also not tenable because the eye-witnesses in this case have been named in the FIR which was promptly recorded. Therefore, even the belated recording of the statements under section 161, Cr.P.C. would not help the accused-respondents, thus, the discrepancies on the said point do not make the prosecution case doubtful."

13. It is settled principle of law that dying declaration must be free from every sort of taint and be independently corroborated for making the sole basis of conviction. The prosecution in support of dying declaration, produced three witnesses, namely, Muhammad Maroof, Shahzaman and Muhammad Haroon, SI/ASHO, who categorically supported the contents of the dying declaration of the deceased, Sherzaman. The contention of the learned counsel for the convicts that the dying declaration was concocted and fake because it was not signed by the Doctor, whereas, Muhammad Haroon SI/ASHO, Police Station Garhi Dopatta, clearly stated in his cross-examination that when the statement of the deceased was recorded, the doctor was not available in the Hospital. Even otherwise the oral dying declaration is a weak piece of evidence which must be corroborated by independent circumstances. In a case reported as Abdul Rashid alias Sheda Mota and another [2003 SCMR 799], it has been observed as under:-- "

21. We having scrutinized the testimony of the eye-witnesses, have found it entirely independent, confidence-inspiring and of unimpeachable character, which would also be confirmed by the evidence of motive and medical. There can be no departure to the rule that if the direct evidence is credible, truthful and trustworthy and it is deemed sufficient to establish the charge, the corroboration from any other sources is not required. The rule of corroboration in the criminal administration of justice is not a mandatory rule to be observed in each case rather it being a rule of abundant caution, is applied to satisfy the mind and ensure the truthfulness of the direct evidence." In a case reported as Farman Ahmed v. Muhammad Inayat and others [2007 SCMR 1825], it has been held as under:- "6 It is a settled law that dying declaration like statement of interested witnesses requires close scrutiny and dying declaration when undoubtedly a statement of interested person had required corroboration .." The learned Shariat Court has rightly held that a police officer should not be encouraged to record dying declaration in a case in which he is investigating himself but when the medical officer is not available, he may record the actual spoken words or gestures of the victim. Therefore, the argument of the learned counsel for the convicts has no force and is hereby repelled. Reliance may be placed on a case reported as Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 it has been held as under:-- "6. .The second reason which prevailed upon the High Court for discarding the dying declaration is that no certificate from the doctor was obtained by Saida Mir Khan (P.W.7) which in our considered opinion is not a valid reason for discarding or disbelieving the dying declaration as there is no mandatory legal requirement that prior to recording such statement a certificate must be obtained from the doctor. Each case has to be examined in view of its own peculiar circumstances and no hard and fast rules can be framed. The relevant provisions of law as contained in Article 46 of the Qanun-e-Shahadat, 1984, which runs as follows were examined in depth by one of us (Mr. Justice Javed Iqbal) in case Kashif-ur-Rehman v. State (1996 PCr.LJ 1689) with the following observations:-- '

46. Cases in which statement of relevant fact by person who is dead or cannot be found etc. is relevant.

Statement, written or verbal, of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-- (1) When it relates to cause of death:

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.'

7. A bare perusal of the said Article would indicate that there is no ambiguity in it and it is a combination of the following ingredients and the language as employed does not permit to add, delete or insert anything new:-- (a) in relates to the cause of death. (b) It includes the circumstances which resulted into death. (c) it is relevant when the cause of declarant's death comes into question whatever may be the nature of proceedings irrespective of the fact whether such statement was made under the expectation of death or otherwise? The above mentioned ingredients were discussed by various higher Courts in different cases which resulted into formulation of acknowledged and time tested principles which are mentioned herein below:-- (i) There is no specified forum before whom such declaration is required to be made. (ii) There is no bar that it cannot be made before a private person. (iii) There is no legal requirement that the declaration must be read over or it must be signed by its make. (iv) It should be influenced free. (v) In order to prove such declaration the person by whom it was recorded should be examined. (vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased. (vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence. (viii) Such declaration when proved by cogent evidence can be made a base for conviction." In a case reported as Mst. Zahida Bibi v. The State [PLD 2006 SC 255], wherein it has been observed as under:- "

17. The rule of criminal administration of justice is that the dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell lie. ."

18. In the light of the above analyses of the evidence, we are of the considered view that the dying declaration could not be treated as an admissible evidence and the conviction on the basis of such an evidence on capital charge, was not legal and with the exclusion of dying declaration of deceased which was foundation of the prosecution case, the remaining evidence would not be sufficient to sustain the conviction. We, therefore, hold that prosecution has not been able to prove the charge against the petitioner beyond reasonable doubt."

14. The convict, Qamar is a principal accused in this case and a specific act of causing the injuries with his dagger on the body of the victim is attributed against him. The perusal of the record shows that both the convicts, Qamar and Mussawar alias Gareebullah were armed with daggers and attacked upon the deceased with the intention to kill him and committed murder of an innocent person. A car bearing No.3498 used in the occurrence was recovered on the pointation of Musawar alias Gareebullah. According to the report of chemical examination, the recovered daggers were found stained with blood, which indicates that the weapons recovered were used in the occurrence. Even otherwise, the deceased has not mentioned any specific injury towards Musawar alias Gareebullah but the deceased has nominated him in the dying declaration, whereas, the weapon of offence was also recovered on his pointation. The convict, Musawar alias Gareebullah has put the deceased in Car No. 3498 and threw him outside of his house, therefore, the learned Shariat Court has rightly awarded the sentence to him. In the FIR, the accused-persons, i.e., Shujah alias Shahzad and Naeem are stated to be armed with daggers but during the investigation, only sticks were recovered from them. The deceased has not attributed a specific role to accused, i.e., Shujah alias Shahzad and Nadeem in the dying declaration. The learned Shariat Court has rightly set aside the conviction of the accused Shujah alias Shahzad and Nadeem on the ground of benefit of doubt. We are fortified in our view by a case reported as Muhammad Ashraf and others v. The State and others [PLD 2015 Lahore 1], wherein it has been observed as under:-- "14 .The evidence of inimical eye-witness can be relied upon, provided the same is confidence inspiring and is corroborated by some independent evidence. We will now discuss the evidence of aforementioned eye-witnesses keeping in view the said principle .." 15. 16. 17. 18.

19. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond the shadow of doubt. It is by now well settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused "

15. Now the question emerged is regarding motive behind the occurrence. It may be stated that the motive is always hidden deep in the minds of the assailants and in the absence of motive, if the case is proved by other unrebutted evidence, the conviction can be recorded. The motive is not necessary ingredient in a murder case. The motive is double-edged weapon which cuts both ways and which way it actually cuts, depends upon the peculiar circumstances of a particular case. The motive is not an essential element to prove the guilt of an accused in criminal trial. The motive behind the occurrence as stated was a marriage between Ejaz Ahmed son of Sherzaman, deceased, and Mst. Sharnaila Bibi, the sister of Rana Qamar-convict. The prosecution witnesses fully supported the version of the prosecution in their statements, whereas, on the other side, nothing was brought on record. It is well settled principle of law that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution, whereas, in the case in hand, the motive behind the occurrence has been proved by the prosecution by producing the reliable evidence. In a case reported as Noor Muhammad v. The State and another [2010 SCMR 97], it has been held as under:-- "7. ..It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214 that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution ..." 13. .It was held in the case of Asadullah Muhammad Ali PLD 1971 SC 541, that corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation " In a case reported as Mehtab Khan v. The State [PLD 1979 SC (AJ&K) 23] observed as under:- "(a) The mere fact that the witnesses are related inter se or related to the deceased is not sufficient to discredit outright their testimony if otherwise such witnesses are found to be witnesses of truth. (b) But where the witnesses are found to have been interested and inimical in the sense that they have a motive to implicate falsely the innocent persons from other party, the Court should be on guard and cautiously look for some supporting circumstances with a view to eliminating the chances of false implication especially in cases where there is a background of blood feuds between the parties or a chain reaction of retaliatory murders. (c) Corroboration does not necessarily mean the evidence of an independent witness but anything in the circumstances which tends to satisfy the Court that each interested witness has spoken the truth."

16. In the case in hand, the deceased, Sher Zaman was murdered by the convicts, Qamar and Musawar alias Gareebullah. As we have already observed in preceding paras that the prosecution's witnesses although remained consistent on the material propositions, however, the minor discrepancies are found which constitute the mitigating circumstances and in view of the settled principle of law these mitigating circumstances may be considered for quantum of punishment. Therefore, the learned Shariat Court has rightly converted the capital punishment into life imprisonment to the extent of main accused Qamar and the life imprisonment into 14 years' rigorous imprisonment to the extent of convict Musawar, on the basis of dying declaration of the deceased and on the basis of other corroborative evidence. In a case reported as Abdul Rehman Khan and another v. Muhammad Mushtaq and another [PLD 2007 SC (AJ&k) 77] it has been held as under:- "18 It is well settled principle of law that while dealing with a murder case it is the fundamental duty of the Court that it should sift the grain from the chaff, but in the instant case there was clear evidence of five eye-witnesses besides the post-mortem report, statement of Doctor, recovery of weapon and report of the Firearm Expert but these have been ignored by the learned Shariat Court without any reasonable justification." 19. . 20. . 21. . 22. . "

23. Now the next question emerges that which sentence shall be sufficient to meet the ends of justice. While awarding the sentence, the Court has to be satisfied that (i) murder has been committed, (ii) murder has been committed by the accused and (iii) question of sentence should be determined according to gravity of offence. The question of sentence demands utmost care. The sentence must be weighed in golden scale and it should be properly balanced to punish the offender. All the circumstances surrounding the guilt must be carefully borne in mind. The elements to be considered for assessing the quantum of sentence are (a) nature of offence, (b) circumstances in which it was committed, (c) degree of deliberation shown by the offender (d) the provocation which he received (e) the antecedents of prisoner up to the time of sentence and (f) his age and character In the matter of sentence a very wide discretion has been given to the Courts but the discretion must be exercised judicially. The basic object of punishment is to create a deterrence so that no one should dare to commit further crime. The basic object of punishment is to make the evil doer an example and a warning to all other like minded persons. This view finds support from a case reported as Bakhshish Elahi v. The State [1977 SCMR 309] wherein at page 312 it has been observed as under:-- 'The Legislature has conferred very wide discretion on the Courts in the matter of sentence under the Penal Code, but as the discretion has to be exercised judicially, the Courts would be entitled to take into account the law and order situation, if the object of punishment or one of the objects of punishment be to deter the commission of further crimes. Now, I do not see how there can be any doubt about this question. Salmond observes in his book on Jurisprudence (Tenth Edition) at page 111 "punishment is before all things deterrent and the chief end of the law of crime is to make the evil doer on example and a warning to all that are like-minded with him". I would agree with this passage and the learned single Judge was justified in holding that a severer sentence was necessary on account of the increase of crime, provided of course culpable homicides of the type under consideration have increased, as held by the learned single Judge "

24. It is also pertinent to note that in a murder case the death sentence is a normal penalty and one while diverting towards lesser sentence has to furnish the detailed reasonings but no reasoning is required for awarding the death sentence because it is a normal penalty. This view finds support from a case reported as Waris Ali v. The State [1999 SCMR 1469] "

17. So far as the contention of the learned counsel for the convict-appellants, that the witnesses produced by the prosecution are close relatives of the deceased, thus the testimony of such witnesses cannot be relied upon for recording conviction is concerned, it may be observed that the testimony of the related witnesses can only be discarded if some animosity, ill will etc. is brought on the record. In the instant case the testimony of the related eye-witnesses is corroborated by the other evidence, thus, under law the testimony of these witnesses can be relied upon for conviction. Although, the prosecution witnesses were found "Adil" during the purgation and in the light of peculiar circumstances of the instant case, the principle of res-gestae was also taken into consideration, however, even then the previous enmity between the convict and the deceased caused due to abduction of the convict's sister, which is a mitigating factor of the case which cannot be ignored. The learned Sharait Court in view of the facts and circumstances of the case after taking into account this mitigation has rightly awarded the lesser punishment to the convicts and has not committed any illegality.

18. So far as the application filed by convict Musawar for grant of interim relief is concerned, the said convict has filed the same on the ground that he has already served out the legal sentence of 14 years' rigorous imprisonment, therefore he may be released. The counsel for the said convict has also stated at bar that according to the Superintendent Jail, the accused has already served out the legal sentence of 14 years, therefore, he may be released. The record reveals that the trial Court awarded life imprisonment to Musawar alias Gareebullah but the learned Sharait Court has altered/ converted the life imprisonment into rigorous imprisonment of 14 years. Against the judgment of learned Sharait Court the complainant-appellants have filed Appeal No.17 of 2016 and we are going to dismiss the said appeal and uphold the judgment of the Sharait Court. In this state of affairs, if the said convict has already undergone the legal sentence of 14 years, he is entitled for release. Reliance may be placed on a case reported as Haji Tahir Hussain v. Saqlain and others [2008 SCMR 817], wherein it was observed as under:- "

2. It is informed by the learned counsel for respondents that the respondent No.1 has already served the legal sentence of life imprisonment awarded to him under section 302(b), P.P.C. by the learned High Court vide impugned judgment, therefore, relying on the judgments of this Court, dated 19th October, 2004 decided in the case of Sajjadullah alias Sajjad Asad v. The State Jail Petition No.191 of 2004 and dated 26th January, 2005, in the case of Ghulam Ali v. Muhammad Yousuf and others in Criminal Petition No.307-L of 2002 and also in the case reported as Mst. Razia Begum v. Jehangir and others PLD 1982 SC 302, Mst. Promilla and others v. Safeer Alam and others 2002 SCMR 1166, Amir Khan and others v. The State and others 2000 SCMR 403 and Abdul Haq v. Muhammad Amin alias Manna and others 2004 SCMR 810 the appeal has become infructuous." 3. ..

4. It may be noted that in so many cases we have already held that on serving out of sentence during pendency of appeal for enhancement, the convict cannot be sentenced for another sentence like death etc. Thus, we are bound to follow same law so far it exists. Therefore, it is held that appeal has become infructuous if the respondent Saqlain has already served out the sentence. He is ordered to be released forthwith in pursuance of the order dated 18th April, 2003 whereby while granting leave, Superintendent Jail was directed not to release him." The result of the above discussion is that the Shariat Court has rightly passed the impugned judgment which does not call for any interference by this Court, therefore, finding no force both the appeals stand dismissed. Resultantly, if the convict-accused, Musawar has completed the legal sentence of 14 years, he shall be released forthwith according to law if not required in any other case. Resultantly, the application for interim relief/suspension of order being infructuous is consigned to record. JK/33/SC(AJ&K) Order accordingly.