1997 P Cr (PLP)

6. It was next contended by the learned counsel for the appellant that according to the report of the General Hospital, Rawalpindi, the cause of death of Khalid Mahmood was "Cardio respiratory arrest", nowhere, the doctor stated that the deceased died due to the gunshot wound. He submitted that according to the post-mortem report, the cause of death is different. The cause of death according to the post-mortem report is "most probably, peritonitis due to perforation of small intestine". He submitted that it is quite astonishing that the post-mortem report is based on the report of the General Hospital, Rawalpindi, but the cause of death is different than the cause mentioned in the report of General Hospital, Rawalpindi. It was further argued by the learned counsel for the appellant that the post-mortem report contains, that the burning and charring was present on the wound. He submitted that the post-mortem was conducted after the twelve days of the occurrence. How it was possible that the burning and the charring remained on the wound, even after twelve days. It was also contended by the learned counsel for the appellant, that according to the site plan, the bullet was fired from the distance of four Karams. How the burning and the charring can be caused from such a distance.

7. It was further contended by the learned counsel for the appellant, that P.W.2, Muhammad Aslam introduced a story different from the complainant and other witnesses. He stated that a quarrel took place between Razzaq and Mst. Fazeelat for the forage. Mst. Fazeelat went to the house. Goddar, Mehrban and Sulaman came there. Muhammad Razzaq, Goddar and Mehrban grappled with each other. Mehrban inflicted injury from the back side of the hatchet to Muhammad Razzaq, then he segregated them, meanwhile, Sulaman fired a bullet, which hit Khalid Mahmood. He submitted that according to this witness the grappling took place between both the parties and the occurrence did not take place in the manner as alleged by the other witnesses. He further submitted that according to this witness, Muhammad Razzaq sustained injuries from the back side of the hatchet. This version does not find corroboration from any medical report. He -further submitted that the other witnesses deposed that Muhammad Sulaman fired a bullet at Muhammad Razzaq, which missed, but this witnesses did not state as such. He deposed that they grappled with each other. The statement of this witness inflects the balance in favour of the appellant that the complainant party grappled with the accused persons. It was further submitted by the learned counsel for the appellant that Muhammad Razzaq P.W.1, deposed that some acrimony took place between him and Mst. Fazeelat Begum on forage. She went to the house and after some time, Muhammad Sulaman, Mehrban and Goddar came on the place of the occurrence. Muhammad Sulaman was armed with rifle, Mehrban with hatchet and Goddar with stick. Goddar raised a Lalkara and Sulaman fired a bullet at him, which missed. After that Mehrban inflicted injury with the hatchet, then Khalid Mahmood after hearing the noise came out from the house and rushed towards the place of occurrence. Muhammad Sulaman fired a bullet on him. It is quite astonishing that according to this witness, Khalid Mahmood came out of the house after the first bullet was fired and the injury was caused to Muhammad Razzaq with the hatchet, then how Khalid Mahmood stated in his statement that first bullet was fired, which could not hit Muhammad Razzaq. This clearly reveals that the dying declaration was made afterward and there is no unison among the dying declaration and the statement of Muhammad Razzaq, rather the statement of Muhammad Razzaq clarifies the position, that the dying declaration was prepared after the death of deceased. He submitted that it was stated by Muhammad Razzaq that his statement was recorded first, then the statement of Khalid Mahmood was recorded subsequently. When the statement of Muhammad Razzaq was recorded firstly, then he would have been the complainant. It was further stated by Muhammad Razzaq that, Fazal Hussain put his signature on the statement of Khalid Mahmood, but the statement of Khalid Mahmood does not contain any signature of Fazal Hussain. 8.' It was next contended by the learned counsel for the appellant that Khalid Mahmood was coming towards the place of occurrence, and according to the site plan, when he reached on point No. 1, then from the point No-3, Muhammad Sulaman fired a bullet at him, then how the injuries were caused on the hip of the deceased. It reveals that some firing was also conducted from the back side from where, the Khalid Mahmood was coming. The occurrence did not take place in the manner alleged by the prosecution. These injuries were not the result of one fire as allowed by the prosecution. It was further contended by the learned counsel for the appellant that Muhammad Aslam and Allah Ditta are the chance witnesses therefore, no reliance can be placed on their testimonies. It was further argued by the learned counsel for the appellant that no independent witness of the locality was cited as witness of recovery memo, therefore, the recovery of the gun is also doubtful.

9. It was next contended by the learned counsel for the appellant that according to the version of t e prosecution, the land in dispute was cultivated by the uncle of the complainant on the Gala Batiy. There is nothing on the file on the basis of which, it can be said that the land was under the possession of the uncle of the complainant and he was cultivating it on the Gala Batiy. According to the Revenue Record, t e land in dispute was under the possession of the accused persons. He referred Exh.P.M./2 to Exh.P.M./3 and contended that Exh.P.H./1, Khasra Girdwari and Exh.P.W./3 Jamabandi, were produced in the evidence by the prosecution. The prosecution is bound by his own evidence. According to Exh.P.M./2 the land was under the possession of accused Goddar and Mst. Fazeelat Begum mother of the accused persons. This document nowhere contains that this land was in the possession of the uncle of the deceased and he was cultivating the land on Gala Batiy rather, this document shows that the land was under the possession of accused persons. Exh.P.M./3, copy of the Jamabandi, also contains notes of mutation. According to which, the mutation of the aforesaid land was attested in favour of Mehrban and Goddar accused persons. Both these documents produced by the prosecution, reveal that the land, where the forage was cultivated was under the possession of the appellant and the complainant party committed the trespass into the aforesaid land. This occurrence did not take place in the manner as alleged by the prosecution and every person has the right to defend his person and property. He referred PLD 1965 SC 151, PLD 1960 Lah. 723, PLD 1976 Kar. 4 and PLD 1963 Kar. 92 in support of his contentions.

10. While controverting the arguments of the learned counsel for the appellant, the learned counsel for the complainant, Ch. Muhammad Sharif Tariq, contended that the judgment of the lower Court is based on sound, sagacious and perspicuous reasoning. He further submitted that in the instant case, Muhammad Razzaq, Muhammad Aslam and Allah Ditta are the eye witnesses. There is complete concordance among the aforesaid three witnesses. The version of the prosecution is based on the sound and clinching evidence. He further submitted that the minor contradictions pointed out by the learned counsel for the appellant were quite natural. These contradictions do not cause any doubt on the genuineness of the story of the prosecution. It was next contended by the 'learned counsel for the complainant that there is no difference or contradiction on the cause of death between post-mortem report and the medical report of the General Hospital, Rawalpindi. There is complete concordance among both the reports. While emphasising on this point, he submitted that according to the post-mortem report, the death was caused due to the perforation of small intestine and the cardio respiratory arrest was the cause of the perforation of small intestine, which occurred due to gunshot wound, as it is clear that multiple gun shot wounds were caused n the abdomen.

11. It was next contended by the learned counsel for the complainant that the dying declaration is a corroborative piece of evidence. It was not necessary that it should have been certified by the doctor and recorded in the presence of the Magistrate. The dying declaration cannot be rejected merely on the ground that it was not certified by the doctor.

12. It was next contended by the learned counsel for the complainant that as the contention of the learned counsel for the appellant is that the bullet was fired from the back side by some other person, which hit on the hip, has no substance. It was further maintained by the learned counsel for the appellant, that as the argument of the learned counsel for the appellant is that Allah Ditta was a chance witness, it has no substance. Allah Ditta clearly stated in his statement that his house is situated at the distance of one hundred yards from the place of occurrence, therefore, it cannot be said that he was a chance witness. It was further submitted by the learned counsel for the complainant that as the argument of the learned counsel for the appellant is that Muhammad Aslant did not state about the first fire, it has also no substance, because Muhammad Aslam reached at the place of occurrence after the first bullet was fired by Muhammad Sulaman, therefore, he did not state about the first fire. It was next contended by the learned counsel for the complainant that no enmity was suggested by the defence to the witnesses. When the witnesses have no enmity with the appellant, then why they would falsely implicate the appellant. It was further contended by the learned counsel for the appellant that the argument of the sudden provocation would have been available, if the injuries would have been caused to Muhammad Razzaq instead of Khalid Mahmood (deceased). He was n t present at the place of occurrence. He was coming towards the place of occurrence, after hearing the noise and the appellant inflicted the fire-arms injuries to him. He further submitted that the appellant committed the macabre slay f a young man. He came armed with a rifle from his house and committed the lurid incident of murder and converted the jocund life of a family into lugubrious one. Such a malefactor does not deserve for any leniency. The lower Court has rightly awarded the sentence of Qisas to the appellant. The learned counsel for the appellant did not press the appeal filed by Badar Din.

13. I have heard the learned counsel for the parties and perused the relevant record and given my utmost muse to the respective argument advanced by the learned counsel for the parties.

14. P.W.1, Muhammad Razzaq appeared before the Court on 10-6-1991 and deposed that Mst. Fazalan Bibi wife of Muhammad Ali was living adjacent to his house. She was not having any male issue. Her daughters were married. She was blind from her eyes. She was looked after and maintained by his father. Her two Kanals land was adjacent to her house. This land as under their cultivation. We had cultivated the forage. Goddar accused said that half of the forage will be used by us and half by her. On the day of the occurrence, he was cutting the forage from the north-east side of the land. Mst. Fazeelat Bibi, the wife of the Goddar and mother of Sulaman accused was also cutting forage from north-west side of the land. Some acrimony took place between him and Mst. Fazeelat Bibi on the forage. After some time, Muhammad Sulaman, Mehrab sons of Goddar and Goddar came there. Muhammad Sulaman was armed with a rifle, Mehrban with a hatchet and Goddar with a stick. Goddar raised a Lalkara and Muhammad Sulaman fired a shot at him. He laid down, so the fire missed. Mehrban opened the attack with the hatchet. He inflicted injury from the back side of the hatchet on his back. Aslam and Allah Ditta were witnessing the occurrence. After hearing the noise, Khalid Mahmood started coming towards the place of occurrence. When Khalid Mahmood came out, Goddar raised a Lalkara. Sulaman fired a bullet at Khalid Mahmood, which hit on the right side of Khalid Mahmood. He fell down, and the accused persons ran away from the place of the occurrence. Khalid Mahmood was brought to the Mirpur Hospital. His statement was recorded by the S. H. O. Muhammad Ameen, P.W.12.

15. P.W.3, Allah Ditta appeared before the Court on 14-9-1991 and stated that on 14-9-1989, the quarrel took place between Mst. Fazeelat Bibi and Muhammad Razzaq on the forage. Mst. Fazeelat Bibi went to her house. She told about the quarrel to her husband and sons. Sulaman, Mehrban and Goddar came on the place of the occurrence. Muhammad Sulaman was armed with a gun, Mehrban with hatchet and Goddar with stick. Muhammad Sulaman fired a bullet at Muhammad Razzaq, he laid down and the fire missed., Mehrban inflicted an injury with back side of the hatchet on the back of Muhammad Razzaq. Meanwhile Khalid Mahmood, cousin of Muhammad Razzaq crossed the wall of the house and started coming towards the place of occurrence. Muhammad Sulaman fired a bullet, which hit on the right side of Khalid Mahmood, who fell down. Muhammad Sulaman and Mehrban ran away from the place of occurrence. Khalid Mahmood was brought to Mirpur Hospital.

16. There is complete concordance among both the aforesaid witnesses regarding (i) the manner of the occurrence; (ii) place of occurrence; (iii) time of occurrence. Both the witnesses stated that first bullet was fired by Muhammad Sulaman at Muhammad Razzaq, he laid down and the bullet missed. After hearing the noise, Khalid Mahmood was coming from his house, Muhammad Sulaman fired a bullet at him, which hit on the right side and he fell down. There is complete unison among both the witnesses regarding the (i) manner of the occurrence; (ii) Place of occurrence; (iii) time of occurrence, and (iv) weapon of offence. There is no difference or contradiction between both the aforesaid witnesses regarding, the manner of the occurrence. Although the version of both the witnesses, that Mehrban inflicted an injury with the hatchet on the back of Muhammad Razzaq, does not find corroboration from the medical report, but there is no difference between both the witnesses regarding the injuries inflicted to Khalid Mahmood by Muhammad Sulaman with the .12 bore gun. It is also pertinent to note that these witnesses have no enmity with the accused persons. Even no enmity was suggested to them during the cross- examination. When the aforesaid eye-witnesses have no enmity with the appellant, then why they would falsely involve the appellant.

17. P.W.2, Muhammad Aslam appeared before the Court on 15-12-1991, and he stated that on 14-9-1989, some quarrel took place between Razzaq and Mst. Fazeelat Bibi regarding the forage. Mst. Fazeelat Bibi went to her house. After some time, Goddar, Mehrban and Sulaman came there. Mehrban was armed with a hatchet, Goddar with a stick and Sulaman with a rifle. Muhammad Razzaq and Goddar started quarrelling. They grappled with each other; Mehrban inflicted an injury from the segregated back side of the hatchet to Muhammad Razzaq. He segregated them. Meanwhile, Muhammad Sulaman fired a bullet with the rifle on Khalid Mahmood, which hit him on the right side.

18. Although there is some difference between the statement of Muhammad Aslam, Allah Ditta and Muhammad Razzaq. Muhammad Aslam expert deposed, that first bullet was fired by Sulaman at Muhammad Razzaq. He further stated that Muhammad Razzaq and Goddar grappled with each other, but there is no difference between the aforesaid two witnesses and Muhammad Aslam regarding the infliction of injuries to Khalid Mahmood. Muhammad Razzaq and Allah Ditta stated that Khalid Mahmood was coming towards the place of occurrence, Muhammad Sulaman fired a shot from his gun, which hit him. Muhammad Aslam also deposed that Sulaman fired a bullet at Khalid Mahmood, which hit him. There is no contradiction or difference between the aforesaid three witnesses, regarding the manner of causing the injuries to Khalid Mahmood by Muhammad Sulaman. It is wall-established principle of law that in a criminal case, the grain has to be sifted from the chaff. It is recognised principle of law that testimony of eye-witness disbelieved against some accused not to be discarded altogether against the other accused. Although, the other two eye witnesses stated the number of bullets fired two, one on Muhammad Razzaq and other on Khalid Mahmood, but Muhammad Aslam stated the number of fire only one. He stated that the bullet fired by the appellant hit Khalid Mahmood (now deceased). The fatal injury to the deceased was caused by the appellant. There is complete concordance among the three aforesaid witnesses on the point "that after hearing the noise Khalid Mahmood was coming towards the place of occurrence and the appellant fired a bullet which hit him and he fell down. There is complete concordance among the aforesaid three witnesses, regarding; (i) the manner of injury caused to Khalid Mahmood; (ii) regarding the place of the occurrence, and (iii) regarding the weapon of offence; (iv) regarding the time of occurrence.

19. It also cannot be ignored that these three eye-witnesses were having no enmity with the appellant. No enmity was suggested to them, nor they were having any relation with the deceased, so they were having no motive to falsely involve the appellant in the instant case. The ocular evidence of the eye-witness, whose presence at the spot is not denied and who had no enmity or ill-will to falsely depose about the occurrence would be reliable and trustworthy. This view finds support from 1983 PCr.LJ 2515. The statement of Muhammad Aslam inspires confidence, because he did not hide anything, nor he became party, but whatever he saw he stated. Even he stated that Goddar and Razzaq grappled with each other, if he would have been a party or some interest with the complainant party, then he would have not stated as such. It is also pertinent to note that the names of the aforesaid three eye-witnesses have been mentioned in the F.I.R. by the complainant. There is no reasoning that why their evidence should not be believed, particularly, when they have no enmity with the appellant to falsely involve him.

20. As the argument of the learned counsel for the appellant is concerned that P.W.2 Muhammad Aslam introduced a story different from the complainant and other witnesses, No doubt that there is some difference between the other two eye-witnesses and Muhammad Aslam. He stated only about the one bullet fired by Muhammad Sulaman, whereas the other two witnesses stated that first bullet was fired on Muhammad Razzaq by Muhammad Sulaman. He also stated that Goddar and Razzaq grappled with each other. Although there is some difference as stated above, but it also cannot be ignored that in a criminal case, the grain has to be sifted from the chaff as stated above. In the instant case, there is no difference between Muhammad Aslam and other two eye-witnesses regarding the causing of injuries to Khalid Mahmood (now deceased), There is complete unison among the witnesses; (i) regarding manner of causing the injuries to Khalid Mahmood; (ii) regarding the place of occurrence; (iii) regarding the time of occurrence, and (iv) regarding the weapon of offence.

21. As the next contention of the learned counsel for the appellant is concerned that Khalid Mahmood was coming towards the place of occurrence and according to the site plan, when he reached on point No. 1, then from point No.3 Muhammad Sulaman fired a bullet, then how the injuries were caused on the hip of the deceased. It reveals that some firing was also conducted from the back side, it has no substance. No doubt that points Nos.3 and 1 are in the straight direction, but cannot be said, that when the bullet was fired from point No.3, at that time, Khalid Mahmood remained in standstill position. He might have flounder. It depends upon the direction of Khalid M mood at the relevant time, whether he was having the face towards Muhammad Sulaman or after the fire, he changed the direction, so it cannot be said that the bullet was fired from the back side also. The pellets of .12 bore cartridges spread over, when it was fired from the distance of four Karams and caused the injuries on the various parts of body.

22. The next piece of the evidence alleged against the appellant is the dying declaration recorded by Muhammad Ameen, S. H. O. P.W.11. Under Article 46 of the Qanun-e-Shahadat, the statement of dying person is admissible in evidence. If it is duly proved and admitted in, evidence, then it stands on the same footing, as of any other evidence, as to its value and credibility. In the instant case, the dying declaration was not recorded by the Magistrate and it was not certified by the doctor, that Khalid Mahmood was capable to narrate as such. Now the question emerges that the dying declaration not recorded by the Magistrate and recorded by a Police Officer carries the same weight and what will be its effect, when it was not certified by the doctor? Section 164 of the Cr.P.C. does not in any way affect the admissibility of a statement made by a' person, if it falls within the terms stated in Article 46 of the Qanun-e-Shahadat. It is not necessary that the dying declaration should be in writing. Under Article 1 46 of the Qanun-e-Shahadat, a dying declaration is admissible even if orally made. This view finds support from PLD 1951 FC 111/113, which reads as under: -- "It must, however, he remembered that the provision in section 164 of the Code of Criminal Procedure, does not in any way affect the admissibility of a statement made by a person, if it falls within the terms stated in section 32 of the Indian Evidence Act. To be admissible under that section, it is not necessary that such statements, usually described as 'dying declarations' must necessarily have been recorded and muchless recorded in accordance with the provisions contained in Chapter XXV of the Code of Criminal Procedure. Dying declarations are admissible even if orally made." The same view also finds support from the 1993 PCr.LJ 1547. It is not mandatory that the dying declaration should be recorded by the Magistrate. It also cannot be ignored that the close scrutiny of dying declaration like the statement of interested witness is necessary, the Court should be more cautious, while acting and relying upon the dying declaration. The Court has to engage itself in dual process. Firstly, testing the credentials of the source of dying declaration. Secondly in scrutinizing the contents of the dying declaration more cautiousness is required. As the maker is not subjected to cross-examination, the Court has to carefully scrutinise all the physical circumstances. Some of the main tests for determining the genuineness of dying declaration are: (1) Whether the maker of the dying declaration had requisite capacity to make dying statement? (2) Whether maker had opportunity to recognise assailant? (3) Whether there were chances for mistake on the, part of dying man in identifying and naming the actual assailant? (4) Whether it was free from prompting from any outside quarter? (5) Whether the witness, who heard the deceased making his statement heard him correctly and whether his evidence can be relied upon?

23. If it stands on the normal test for judging the veracity, it becomes wholly reliable piece of evidence and it can safely be accepted as a genuine and true statement of the maker, and if it does not stand on the normal test, then it will not be considered as reliable piece of evidence. It is pertinent to note that the maker is not subjected to cross-examination, therefore, the Court has to carefully scrutinise all the physical circumstances appearing from the evidence. This view finds support from PLD 1986 Quetta

26. The value of the dying declaration could not be at par with the evidence adduced in the Court. The dying declaration of the deceased contains a degree of sanctity, under law, being the statement of a dying man, on the belief, that he being placed in a situation of immediate apprehension of separation of his ties with the mundane affairs, would not tell lie and implicate the innocent person on the basis of false charge, but it is not a universal principle. The society in which we are living, in this it has become judicially recognized general practice to add or to involve the innocent person in the incident to satisfy the sense of revenge, and to put the other party in maximum trouble, so it could not be laid down as rigid rule, that person who is injured and is in the apprehension of death would at once be gifted as if by a magic transformation with a clean conscience and purity of mind, to shed all the age old habits and deep-rooted rancourse and enmities, therefore, close scrutiny of dying declaration like the statement of interested I witness is necessary, because it is not sacrosanct. This view finds support from 1993 PCr.L1 1547 relevant page 1551.

24. It is evident from the aforesaid tests that the dying declaration is to be appreciated with due diligence to fix the liability. The Court has to keep in view, whether the dying declaration was free from prompting from outside quarters and was not inconsistent with the other evidence and circumstance of the case. This view finds support from 1985 PCr.LJ 1162.

25. No doubt that a dying declaration recorded by a person other than the Magistrate is admissible in the evidence, but it depends upon the circumstances and the facts of each case. If an injured person is near to die and he is far away from the hospital, and the Courts, where neither the doctor, nor the Magistrate is easily available, then his dying declaration recorded by the Police Officer could be relied upon. In the instant case, Khalid Mahmood injured was in the hospital, when his dying declaration was recorded by Muhammad Ameen, S.H.O. The doctor was easily available in the hospital. Muhammad Razzaq P.W.1 on page 5 of his statement, stated that when Khalid Mahmood was brought to the hospital, he was examined by the doctor. The doctor stated that he can talk, so the police recorded his statement. It means that the doctor was available at the relevant time. It flabbergasts' me, that why the statement of Khalid Mahmood was not certified by the doctor, that he was capable to narrate at the relevant time. It tilts the balance in favour of the accused, that at the relevant time, Khalid Mahmood was not in a position to narrate as such, if he would have been in a position, then certainly, it would have been certified by the doctor. The statement of Fazal Hussain also lends support to the version that at the relevant time, Khalid Mahmood was not in a position to state. He deposed in the end of the examination-in-chief that when Surgeon came, Khalid Mahmood was in a precarious condition. He referred him to Rawalpindi hospital.

26. It was the basic duty of the prosecution to prove that Khalid Mahmood was in a position to narrate at the relevant time. Muhammad Ameen, S.H.O., who recorded the dying declaration, appeared as a witness. He did not furnish any explanation, that why the statement of Khalid Mahmood was not got certified by the doctor, particularly, when his statement was recorded in the hospital. It is also pertinent to note that Khalid Mahmood sustained injuries on 14-9-1989. He remained alive up to 26-9-1989, but during this period no effort was made by the police for recording his dying declaration by a Magistrate under section 164 of the Cr.P.C. and his statement recorded by Muhammad Ameen, S.H.O. was not certified by the doctor. The prosecution has miserably failed to prove that on 14-9-1989, Khalid Mahmood was in conscious at the relevant time. He was capable to narrate as such. The dying declaration recorded in a hospital not certified by the doctor could not be relied upon. This view finds support from PLD 1984 Lah. 204 relevant page 328, which reads as under:-- "In the present case, as already observed, dying declaration was recorded by Allah Bakhsh, A.S.-I. in the hospital in the presence of the relatives of Muhammad Akram. He did not care to get it attested by the doctor although he happened to be present there. Muhammad Akram lived for about 40 days after making this statement Exh. P.O. During all this period, no effort was made by the prosecution to get his dying declaration recorded by a Magistrate or a Medical Officer. In the circumstances, not much reliance can be placed on Exh. P.C. as a dying declaration. " The same view also finds support from 1985 PCr.LJ 2272 relevant page 2275, which reads as under:-- "The dying declaration Exh. P.H. also fails to inspire confidence inasmuch as it has partly been disbelieved by the trial Court; that it does not bear the signatures of the doctor although it was recorded in the hospital." This view also further finds support from 1986 PCr.LJ 1598 relevant page 1608.

27. It is also pertinent to note that according to Muhammad Razzaq, when the first bullet was fired by Muhammad Sulaman at him, he laid down and the bullet missed, after that Mehrban inflicted injury with the hatchet. Aslam and Allah Ditta were witnessing the occurrence, after this, after hearing the noise, Khalid Mahmood was coming towards the place of occurrence. Allah Ditta also deposed that after the first fire and infliction of the injury with the hatchet to Muhammad Razzaq, Khalid Mahmood was coming towards the place of occurrence, then Muhammad Sulaman fired a bullet at him. From the statements of both the witnesses, it is crystal clear that Khalid Mahmood started coming towards the place of occurrence, after the first fire and infliction of injury to Muhammad Razzaq, but it is quite astonishing that the statement of Khalid Mahmood recorded by Muhammad Ameen, S.H.O. contains that the first bullet was fired by Muhammad Sulaman at Muhammad Razzaq, he laid down, so the fire missed. Now the question emerges that when he started coming towards the place of occurrence, after hearing the noise, then how he witnessed the first bullet fired by Sulaman at Muhammad Razzaq. It pretends that the dying declaration is not in accordance with the statement of Muhammad Razzaq and Allah Ditta; therefore, no reliance can be placed on the above dying declaration and it cannot be said that Khalid Mahmood was in a position to narrate as such 5t the relevant time.

28. The next piece of the evidence against the appellant is recovery of .12 bore gun. According to the prosecution, the gun was recovered at the instance of appellant Muhammad Sulaman in the presence of Muhammad Razzaq P.W.1 and Muhammad Fazal P.W.6 by Mirza Muhammad Ameen, S.H.O. P.W.11. Muhammad Razzaq P. W .1, Muhammad Fazal P. W .6 and Mirza Muhammad Ameen P.W.11 appeared before .the Court. Muhammad Razzaq P.W.1 deposed that the gun was recovered at the instance of Muhammad Sulaman in his presence. Although, lengthy cross-examination was conducted on this witness, but there is no contradiction between him and Muhammad Fazal regarding the recovery of the gun. There is no contradiction between both the witnesses; (1) regarding the place of recovery of gun; (2) regarding the time of recovery of gun; (3) regarding the manners of the recovery of gun; (4) regarding the presence of the witnesses of recovery of the gun. Both the witnesses deposed that the appellant was under the arrest and he pointed out the place, where the gun was lying. The gun was recovered from the room of his house. The aforesaid witnesses have no enmity with the appellant. Even no enmity was suggested to them during the cross-examination. Now when they have no enmity with the appellant, then the question emerges, that why they would falsely attribute the recovery of the gun to the appellant. There is complete unison among both the witnesses regarding the recovery of gun. It is pertinent to note that Mirza Muhammad Ameen, S.H.O. who affected the recovery also appeared before the Court as, a witness. There is complete concordance among both the aforesaid witnesses of the recovery and Mirza Muhammad Ameen. He also stated that the appellant was under the arrest, he pointed out, the place of gun and produced the gun in the presence of both the aforesaid witnesses. The prosecution has proved the recovery of gun at the instance of appellant.

29. The next piece of evidence against the appellant, is the recovery of two .12 bore empties. Both the empties were recovered from the place of the occurrence during the spot inspection by Muhammad Ameen, S.H.O. in the presence of Muhammad Aslam P.W.2 and Allah Ditta P.W.3. Both the witnesses appeared before the Court. Muhammad Aslam deposed that empties were recovered from the place of the occurrence and the recovery memo. was prepared. Recovery memo contains his signature. Although lengthy cross- examination was conducted on this witness, but there is no contradiction between him and Allah Ditta regarding the recovery of empties from the place of the occurrence Allah Ditta also appeared as witness and he deposed that two empties were recovered from the place of the occurrence. He corroborated the version adopted by Muhammad Aslam. Mirza Muhammad Ameen, S.H.O., who made the recovery of two empties also appeared before the Court as a witness and corroborated the version adopted by both the witnesses. Both the empties of the gun were sent to the Fire-arms Expert. According to the opinion of the Fire arms Expert Exh. P.S. both the empties were fired from the gun recovered from Muhammad Sulaman appellant. The prosecution has established beyond any doubt that the empties recovered from the place of the occurrence were fired from the gun recovered from the appellant.

30. The prosecution has proved the case against the appellant beyond any reasonable doubt from the evidence of; (1) three eye-witnesses; (2) recovery of the gun; (3) recovery of two empties; (4) from the report of the Fire-arms Expert Exh. P.S. Although the prosecution has failed to prove the dying declaration, which is a corroborative piece of evidence, the corroboration can be from any circumstance. In the instant case, as stated above that there is complete concordance among three eye-witnesses; (1) regarding the infliction of injuries to the deceased (Khalid- Mahmood) and regarding the manner of occurrence; (2) regarding the place of occurrence; (3) regarding the time of occurrence and regarding the weapon of offence. The evidence of three eye-witnesses finds corroboration from the recovery of gun and recovery of gun finds corroboration from the recovery of the empties recovered from the place of the occurrence. The report of Fire-arms Expert proves that the empties recovered from the place of the occurrence were fired from the gun recovered at the instance of the appellant, therefore, the prosecution has proved beyond reasonable doubt that the appellant committed the slay of Khalid Mahmood.

31. In this case, the important question pertains to the quantum of sentence. Whether, this is the case, in which the sentence of Qisas is justified or some other sentence will be sufficient to meet the ends of justice? The question of the sentence requires utmost care. The sentence must be weighed in golden scale and should be properly balanced to deter the rest of the society from the commission of the crime without being unnecessary harsh.

32. In the instant case, the motive alleged by the prosecution was "that the land "of Mst. Fazalan Bibi, the mother of Mst. Fazeelat Bibi was under the cultivation of the complainant party on Gala Batiy. The complainant party had cultivated the forage in the land. Some acrimony took place between Muhammad Razzaq and Mst. Fazeelat Bibi regarding the cutting of forage". Now the question emerges, whether the prosecution has proved that the land, where the murder was committed was under the cultivation of the complainant party on Gala Batiy? The prosecution has miserably failed to prove it. It is pertinent to note that a party is bound by his evidence. In this case, the prosecution has produced the copy of Khasra Girdawari Exh.P.M./2, copy of Jamabandi Exh.P.M./3, in support of his claim. Now the question arises, whether from these documents, the prosecution has proved the possession of the complainant party on the land. According to the Khasra Girdawari Exh.P.M./2, the land was under the possession of Fazal Begum, Mst. Fazeelat Begum, Mst. Maqsood Begum, Mst. Kalsoom Begum and Goddar. It also contains entry of mutation of gift, which shows that Mst. Fazeelat Begum has gifted her share to her son Mehrban, who is also one of the accused. According to this document, the land contains the possession of accused party, because, Mst. Fazeelat Begum is the mother of appellant and Mehrban is an accused, who is also brother of appellant. This document nowhere pretends that the complainant party was having the possession of the land in dispute. Exh.P.M./3, copy of Jamabandi also contains the possession of the accused party and it also contains the entry of mutation of gift deed, whereby Mst. Fazeelat Begum has gifted her share to Mehrban one of the accused, who is .brother of the appellant. Both the documents do not contain any entry of the complainant or any of his relative, rather both the documents are impinging with the version of the prosecution, therefore, on the basis of both the aforesaid documents, it can be said that on the day of the occurrence, the land was under the cultivation of the complainant party on Gala Batiy as alleged by the prosecution, but it was in the possession of the accused persons. It is also notable that Muhammad Ameen, S.H.O. P.W.I1, also deposed that the place of occurrence belongs to Mehrban accused. He also stated that in Khasra Girdawari Exh.P.M./2, the possession of Mehrban is recorded. According to Exh.P.M./3, the mutation has been attested in favour of Mehrban. It is established from the evidence of prosecution that the land was not under the cultivation of the complainant party on the day of the occurrence. The evidence of the prosecution has enfeebled the basic motive of the crime, rather the prosecution has failed to prove its basic alleged motive. The motive alleged by the prosecution remained obscure and could not be positively proved. The prosecution has not come with the-whole truth, regarding the motive. Motive though not a sine qua non for bringing the offence of murder at home, but it has importance regarding the quantum of sentence. This view finds support from 1983 SCMR

806. It is well- established principle of law that where the motive for the offence is shrouded in mystery, then the extreme penalty of death is not warranted, sentence would be reduced to life imprisonment. This view finds support from 1988 PCr.LJ

307. When the motive for the offence is either not proved or not satisfactorily established, it is a circumstance, where extreme penalty of death is usually commuted into lesser punishment of life imprisonment. This view finds support from 1987 PCr.LJ 1689. It further finds support from 1987 PCr.LJ 1812. 33 As stated above that from the aforesaid documentary evidence it transpires that the land in dispute was under the, possession of the accused party. The complainant party went into the land belonging to the accused party. They trespassed into the land. It can be said that it was complainant party, who initiated the whole affair, but at the same time there was no justification for the commission of murder of Khalid Mahmood, because no injury was caused to any of the accused persons, therefore, it can be said that the accused persons have exceeded the right of self-defence. In the instant case, a balance has to be maintained between the two versions. The prosecution was bound by law to exclude all possible extenuating circumstances, in order to bring the charge home for awarding normal penalty of death and in case of the failure of the prosecution, the normal penalty of death could not be awarded. This view finds support from 1983 SCMR 1169 relevant page 1170, which reads as under:-- "Thus, the balance is to be struck between the two versions. The prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. In the instant case we find that Bacha, P.W.1 brother of the deceased has stated in the F.I.R. as under:-- On the day of occurrence at 11 a.m. my deceased brother Bahroz Khan was ploughing in the orchard of Muhammad Tahir when Tahir Khan came and asked my brother (the deceased) as to why he was ploughing in his orchard. In reply my brother said that he was paying the lease money for the orchard. Muhammad Tahir Khan got infuriated and fired three shots at my brother and killed him.' In this report, appellant's ownership of the orchard is admitted by Bacha, P.W.1. But the complainant Bacha has not been able to show that any lease document regarding the orchard was executed between the parties, nor there is any evidence that the deceased was in possession of the orchard as a tenant. As a matter of fact, in an orchard, ploughing is not allowed in order to avoid damage to the fruit trees. Manually orchards belong to the owners and a tenant or leasee can only plant fruit trees, if permitted by the land-owner. Thus, we consider that this is a case where life imprisonment would meet the ends of justice."

34. In the instant case, according to the version of the prosecution, there was no enmity between the parties, due to which this murder was committed, but the version of the prosecution is that on the day of the occurrence, some acrimony took place between the mother of the appellant and Muhammad Razzaq P.W.1. The mother of the appellant went to the house and narrated the whole affair to her sons and husband. It seems that she exasperated them. They came on the place of the occurrence and committed the occurrence. It pretends that some hot words were exchanged between Muhammad Razzaq and Mst. Fazeelat Begum, the mother of the appellant. She went to the house and told her sons and husband. It appears that the appellant has fallen in a prey of the heat of the moment ignited by the filthy abuses exchanged between the mother of the appellant and Muhammad Razzaq, which prompted the appellant for the commission of instant occurrence. The occurrence took place on the spur of moment, therefore, the sentence of Qisas is not justified. This view also finds support from 1975 PCr.LJ 929 relevant page

932. The accused was a young man of twenty-two years, when his mother told him that Muhammad Razzaq exchanged the hot words with her, then he infuriated and could not control himself and committed the instant occurrence, therefore, it cannot be said that the occurrence was committed with a pre-planning or due to some old enmity, but it was committed on the spur of moment and in such like occurrence, the life imprisonment is sufficient to meet the ends of justice. This view finds support from 1990 PCr.LJ 1760. The aforesaid circumstances have windled the gravity of the offence therefore, the sentence of life imprisonment will be sufficient to meet the ends of justice.

35. The epitome of the above discussion is that this appeal is partly accepted and the sentence of Qisas is converted into life imprisonment. The sentence of Qisas is not confirmed. The appeal filed by Badar Din has not been passed, even otherwise, it has no merits, therefore, it is hereby dismissed. N.H.Q./20/SC (AJ&K) Sentence reduced