2000 PLP 1778 (YLR)

15. We have heard the learned counsel for the appellant as well as for the complainant and the learned A.A.‑G. for the State.

16. By going through the evidence of the prosecution the stand taken by the appellant at the time of framing of the charge referred to in the preceding paras and his statement recorded under section 342, Cr.P.C. there is left no room for doubt in respect of the firing by the appellant at the deceased as a result of which he succumbed and expired.

17. The main thrust of the learned counsel for the appellant, inter alia, was with regard to the quantum of sentence in view of the attending circumstances of the case and also the absence of any other motive except the threats or self‑defence as alleged by the appellants.

18. On merits of the case the learned counsel for the appellant submitted that the learned Sessions Judge has given an extensive reference to case F.I.R. No.96 and in which case the deceased Saleem was facing trial and drawing inference against the appellant instead in his favour, that in para. No.14 of the impugned judgment the facts as disclosed in F.I.R. No.96 have been reproduced and according to which the occurrence in the said case has taken place in the month of Ramazan at Taraveeh" prayer time; that the deceased after pelting stones at the door of Mst. Rashda Bibi and after making enquiry by her she was fired upon by Saleem deceased as a result of which she sustained injuries on her both legs; that upon her hue and cry Farman/Rehman the deceased in the case alongwith Muhammad Asif attempted to catch‑hold of Saleem, Farman was fired upon, who later on succumbed to his injuries. The learned counsel for the appellant while elaborating his arguments further contended that the learned trial, Court instead of drawing inference, if possible, in favour of the accused‑appellant in case the same has been drawn against the appellant in violation of the principles of criminal administration of justice whereby the learned Sessions Judge has observed in his judgment "that his intimacy with the deceased Farman/Rehman lies in the fact that even in the month of Ramazan they both did not bother to offer their "Taraveeh' prayer instead they wondered in the street of the village"; that his (Sessions Judge) this inference reflecting adversely against the appellant's conduct drawn against him with reference to case F.LR. No.96 compels one to make a further reference to the record of that case and where a statement recorded under section 164, Cr.P.C. of the appellant indicates that they both were going to the mosque for offering 'taraveeh prayer when the occurrence iii that case took place, quite opposing to the inference drawn by the learned Sessions Judge.

19. The learned counsel for the appellant has argued with regard to motive that the prosecution at the initial stage, in the Murasila, was giving an impression that the accused was having previous enmity. Abdur Razzaq (P.W.5), I.H.C. who has drafted the Murasila has stated therein that the appellant. after the commission of the offence when he was being apprehended by the witnesses, was saying that the injured person (the deceased) was the murderer of his brother. The witness has not said anything about this fact in his Court statement. The case vide F.I.R. No.96 in which the deceased was an accused is relating to the murder of one Farman/Rehman and an attack on the house of Mst. Rashda Bibi whereby she was injured have got no relationship whatsoever with the appellant and it is most probably in view of this fact that Abdur Razzaq witness has abandoned his version attributed to the appellant that the deceased was the murderer of his brother. It is not a case where the motive has not been set up but a case where at the initial stage the motive has been alleged for the commission of the crime but later on when the circumstances did not disclose or support the said fact then it was abandoned. There is nothing on record particularly of the instant case and also in the case where the appellant was appearing as a witness that he was having any, previous enmity or ill‑will with the deceased or any of his relative/friend who was attacked/injured/murdered. Thus, he has contended that in absence of motive, or once set up but abandoned, the appellant does not deserve the award of death sentence but this furnishes a mitigating circumstance for awarding lesser punishment.

20. While on the other hand the learned counsel for the complainant and the State have contended that plea of self‑defence taken by the appellant does not ring true and it is not each and every case where the accused can take advantage of the absence of any motive alleged or taken against him.

21. Now the questions which posed themselves for consideration and determination by this Court are the plea of self‑defence and the quantum of sentence in view of motive and threats given to him by the deceased not to depose against him as a witness.

22. As it has already been observed that in view of the overwhelming evidence both occular consisting of the statements of eye witnesses P.Ws.7, 8 and 14 and circumstantial evidence i.e. the recoveries of empties, pistol and positive report of the fire‑arms expert, the confessional statement of the accused and the stand taken by him at the time of framing of the charge and at the time of recording his statement under section 342, Cr.P.C. the firing by the appellant at the deceased is not doubted.

23. The self‑defence plea has been taken by the appellant for the first time when the charge was framed and also in his Court statement under section 342, Cr.P.C. by stating that in the Court‑room when the deceased threatened him and also wanted to fire at him he in self‑defence fired at him. On the third day of occurrence when his confessional statement was recorded he did not say anything about the self‑defence but rather his stand was that he was threatened by the deceased not to depose against him. According to the fire‑arms expert one of the bullets recovered from the spot has been stated to be that of 7.62 bore and which could not have been fired with the pistol, the crime weapon, recovered from the appellant. This by itself is not sufficient to support the plea of self‑defence of the appellant as nothing, i.e. weapon was recovered from the deceased and there is nothing in evidence giving an inkling of the fact that the deceased at the relevant time was also armed with some weapon or that he taken some steps towards his attempt on the appellant. The three witnesses have also stated nothing about any attempt made by the deceased at the appellant, who are independent witnesses including the Sessions Judge. The recovery of this bullet by itself is not sufficient to support the plea of self-defence of the appellant.

22. The learned counsel for the appellant has placed reliance on "Muhammad Ashgar and others v. The State" (1997 MLD 2197) and has contended that the law does not require proof from the defence which has to be furnished by the prosecution and only the reasonable possibility of the defence plea is sufficient to entitle him to the benefit of doubt but in the instant case this reasonable possibility of the plea of self‑defence was not brought on record to entitle him to the benefit of such plea:

23. While on the other hand the learned counsel for the complainant has placed reliance on "Riaz Ahmad v. The State" (1996 PCr.LJ 43) and "Mitha v. The State" (1996 SCMR 1140) by contending that the defence plea put forward by the appellant has not been substantiated by him and on the very face' of it appears to be a false one and their this contention seems to be having force in the circumstances of the case, as discussed above. that the evidence on record is not supporting the plea of appellant.

24. The learned counsel has contended that the motive is shrouded in mystery and the one which was taken at the initial stage was not proved rather abandoned and be placed reliance on "Muhammad Ishaque Khan and others v. The State" (PLD 1994 Supreme Court 259), "Muhammad Ashraf v. The State" (1998 SCMR 1764), "Muhammad Rafiq v. The State" (1998 MLD 94).

25. While on the other hand the learned counsel for the complainant has relied upon "Talib Hussain and others v. The State" (1995 SCMR 1776) and has submitted that it is not each and every case where the absence of motive rendered the case of the accused-appellant as one of a mitigating circumstances and entitled him to a lesser punishment.

26. The only fact which is available in evidence for the commission of offence, according to the version of the appellant, is he being threatened by deceased not to depose against him as a witness otherwise he would face the dire consequences. According to his confessional statement, immediately before the call of the case he was threatened by the deceased outside the Court and according to his plea taken at the trial he was also threatened after entering the Court‑room. Except his bare statement nothing was brought on record that he was threatened both outside or inside the Court‑room rather the threatening inside the Court‑room has been negated by P.W.7 wherein he has stated in his cross‑examination "no conversation in between the deceased and the assailant took place inside the Court‑room after calling the case till the firing". If appellant's version is taken to be true even then after entering the Court‑room, a sufficiently protected place, the immediate threat at the hands of the deceased was not there and the appellant ought not to have violated the sanctity of the Court by choosing the place to do away with the deceased for something nourishing in his mind and moreso with 6/7 repeated fire‑shots at him (deceased). Had the appellant been given any threat by the deceased or he had felt some apprehension at the hands of the deceased then it was not required of him to repeat his firing in order to exclude the possibility of any chance of survival. The learned counsel for the appellant has relied upon the facts of the case vide F.LR. No. 196 and his statement recorded under section 164, Cr.P.C. in which he was appearing as a witness against the deceased to support his plea of mitigating circumstance but none of the documents has been exhibited and which does not form part of the present record to be referred to and relied upon. Hence we see no mitigating circumstances to make him entitled to the award of a lesser punishment once he was found guilty of firing at the deceased.

27. The next question which requires consideration is the death penalty by way of Qisas. In this respect the learned trial Court has referred to section 304 which provides for the proof of Qatl‑i‑Amd liable to Qisas and which provides that if an accused making a voluntary and true confession of the commission of offence before a Court competent to try the offence or if the evidence is produced as provided under Article 17 of the Qanun‑e‑Shahadat, 1984 then he is liable to Qisas. The learned trial Court was of the view that the witnesses must be truthful. In order to prove that the witnesses are truthful then the Tazkiyah-al-Shahood ought to be undertaken. However, in the instant case he dispensed with the necessity of the process of Tazkiyah‑al‑Shahood on the ground that the factum of truthfulness of a witness should be, to the satisfaction of the conscience of the Court and the eye‑witnesses who appeared including the learned Sessions Judge, whose conduct was held to be above board. However, his conclusion based on his personal knowledge of the witness. About the other eye‑witness i.e., Shah Alam (P.W.8) he observed that he knew him but his conduct was not commented upon. However, the absence of the cross‑examination qua conduct of the witness was taken to be sufficient to hold him as a true witness. He has also referred to the confessional statement of the appellant by observing that the appellant stuck to his confessional statement made by him before the Judicial Magistrate and he has affirmatively stated at the time of framing of the charge that he has fired upon the deceased and similar was his stand when his statement was reproduced under section 342, Cr.P.C.

28. According to Article 17(1) of the Qanun‑e‑Shahadat, 1984, the competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Quran and Sunnah. In "Abdul Razzaq and another v. The State" (PLD 1988 Supreme Court (AJ&K) 190) the Honourable Court was seized of an appeal filed by the convict and also a revision petition for enhancement of sentence in a murder case and after finding certain defects in the process of Tazkiyah‑al‑Shahood, whereby it was observed: ‑‑ "In these circumstances, I am of the view that the purgation had not been conducted in accordance with the procedure available in Islam. This factor vitiates the judgment and warrants remand." Subsequent in case "Daniel Boyd (Muslim name Saifullah) and another v. The State" (1992 SCMR 196). The Supreme Appellate Bench, in a case relating to Offences Against Property (Enforcement of Hudood) Ordinance, 1979 also finding defects in the exercise of Tazkiyah-al-Shahood undertaken by the trial Court while setting aside the judgment and order of the Courts below, has also relied on the aforesaid judgment, and has observed: ‑‑ "(a) 'Tazkiya' means purgation of witness. A Tazkiya of the witnesses is conducted primarily with the object to know their competency and other virtues in order to place implicit faith in their statements to record conviction in cases of 'Hudood' and 'Qisas'. Naturally, the procedure adopted to conduct 'Tazkiya' must satisfy that it is done by 'person whose conduct is also above board. 'Tazkiya' conducted by any person whose conduct is not shown to be above board cannot be considered to be 'Tazkiya' known in Islamic law." In case "Secretary to Government of N.‑W.F.P., Home and Tribal Affairs Department, Peshawar v. Muhammad Ayaz Khan and others" (PLD 1996 Peshawar 76), which is a murder case and the trial Court after holding the accused as guilty of the offence has awarded the death penalty by way of Qisas and which was confirmed up to the Supreme Court. At the time of execution of the punishment when the warrant was issued under section 381, Cr.P.C. it was returned with the remarks that according to the judgment the punishment be executed under section 381, Cr.P.C. read with section 314, P.P.C. and afresh warrant was issued for the execution of the sentence by way of Qisas. The Provincial Government filed a writ petition against the order of the execution of the death sentence by way of Qisas through a warrant issued by the trial Court and which was heard by a Division Bench of this Court and it was observed that the Tazkiya‑al‑Shahood process had not been undertaken in the case and the execution of death sentence by way of Qisas was not proper and ultimately it was held: ‑‑ "Therefore, we hold that as the convict Jehangir was tried under Tazir and was awarded death sentence, the black‑warrant, dated 29th November, 1994 was issued under the ordinary law and the issuance of subsequent black‑warrant dated 23rd April, 1995 for the execution of death sentence of convict Jehangir by way of Qisas is nothing but a patent error on the face of the record. We therefore, declare this subsequent black‑warrant to be unlawful and no legal effect. Consequently, the convict Jehangir shall be deemed to have been convicted and sentenced under clause (b) of section

302. P.P.C. as Tazir and the black‑warrant, dated 29th November, 1994 Annexure‑D of file, issued earlier by the learned trial Judge is a proper lawful warrant under section 368 read with section 381, Cr.P.C."

29. In the light of the judgments cited above and also Article 17(1) of Qanun‑e -Shahadat it is incumbent upon the Court while awarding the death sentence by way of Qisas to undertake the exercise of Tazkiya‑al- Shahood/purgation and the satisfaction of the conscience of the Court from his personal knowledge is not sufficient. The guidelines of the purgation have been laid down in cases "Ghulam Ali v. State" (PLD 1986 SC 741) and "Mumtaz Ahmad and another v.. The State" (PLD 1990 Federal Shariat Court 38), the latter has been relied upon in case reported in PLD 1996 Peshawar page 76, which are as under: "(i) There must be evidence of victim followed by at least two Witnesses: (ii) in case of discrepancies on vital aspects between the witnesses both shall be rejected; (iii) Tazkiya‑al‑Shahood is a condition precedent to impose the sentence of Hadd; (iv) there should be one or more 'Muzakki' (a person who testifies about the truthfulness of the witness); (v) the `Muzakki' should be present when ttte witness gives evidence; (vi) the 'Muzakki' should also be questioned about antecedents. Character and dealings of the witness; (vii) it is the responsibility of the Court to satisfy itself about the credibility of a witness and it can for that matter select an open or secret mode of inquiry or both; (viii) the Court may frame a questionnaire on which the 'Muzakki' should collect information to supply to the Court: (ix) the Court should also examine the 'Muzakki' after he submits his report; (x) the Court should ask searching questions from the witness and cross- examine him to discover facts which might show this credibility, piety or otherwise."

30. In view of the judgments referred to above the punishment by way of Qisas cannot be awarded unless Tazkiya‑al‑Shahood has been done in the case and which in the instant case is lacking.

31. The learned trial Court has also relied on the statement of the appellant which was recorded thrice i.e. before the Judicial Magistrate during the investigation: at the time of framing of the charge and also at the time of his statement recorded under section 342, Cr.P.C. The statement recorded by the Judicial Magistrate, as a confessional statement do not qualify the condition of a true and voluntary confession made before a competent Court to hold trial. However, his statement at the time of framing of the charge and also recorded at the end of the trial he has not confessed the guilt, the commission of offence, but what he has stated was that he has fired upon the deceased after giving him threats by the deceased and also an attempt made by him (deceased) at the appellant to kill him and he is in self‑defence had retaliated, so his statement cannot be treated as a confession in the true sense admitting his guilt but rather pleading a plea and if proved and accepted then that would exonerate him. At the time of recording his statement under section 342, Cr.P.C. he has specifically stated that his statement has not been correctly recorded by the Magistrate what he has stated before him. Hence the stand taken by him at the three stages also do not qualify the condition of a true and voluntary confession of the commission of offence, and not sufficient for awarding him the punishment by way of Qisas.

32. After holding that the appellant could not have been awarded the punishment by way of Qisas then if the evidence is sufficient against him to hold him guilty, then punishment under Tazir can be awarded as held in PLD 1996 Peshawar page 76.

33. Consequently while holding the appellant as guilty of offence under section 302(b), P.P.C. the death sentence awarded to him is maintained with modification that he be hanged by the neck till he is dead and the murder reference is also modified to the above extent and is answered in the affirmative.

34. The findings of the learned trial Court with regard to the causing of injury i.e. Jurh of 'Mutalahima' punishable under section 337‑F(iii), P.P.C. are also upheld and maintain the sentence awarded to him under the said section of law.

35. The appeal is, therefore, dismissed. N.H.Q./157/P Appeal dismissed.