P L D 1995 Karachi 469 (PLP)

A false witness wilt not go unpunished and he who pours out lies will perish (Proverb 19:9) Except the general or universal principle' of evidence, as quoted above, I could not find anything specifically on the point of admissibility or inadmissibility of evidence of close relatives appearing against or in favour of relatives. In the light of abovementioned position, it is interesting to point out that in England., husbands and wives were considered to be incompetent witnesses to give evidence in favour of each other till tire middle of 19th century. This 'concept was totally similar to the view, of the Hanfis in Islamic WViId, but it was changed later on. On 1st September 18'72, when the rulers of Sub‑Continent, introduced the Evidence Act, it contained section 120 which runs as under: "Section 120: In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal . proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness." Thus, the new concept under section 120 of the repealed Act was similar to the views of the Shias and "Shaft's". On 26th October, 1984, when the Evidence Act was repealed and the Oanun‑e‑Shahadat Order, 1984 was promulgated, section 120 of the repealed Act was not reproduced in the Order, 1984. Omitting section 120 of the repeated Act in the Order_ 19254 was not meaningless. It can be presumed that either the drafters of the Order, 1984 basically belonged to the Sunnis Sect, therefore, they considered it necessary. to omit the said section from being introduced in the Order, 1984 or they themselves were not definite about the exact scope of evidence of husband in favour of his wife or vice versa. However, second presumption seems to be more closer than the first one and accordingly the same question was left for the Courts to decide the same" c Holy Quran' and Ahadith of Holy Prophet (PBUH) ; The Holy Qur'an and the Ahadith of the Holy Prophet (peace be upon him) are fully saturated to explain the law of evidence in Islam and it iv important to, point out that the basic principles are not disputed by any scholar of any sect. It may not be feasible to give reference of all verses of the Holy Qur'an or to reproduce all Ahadith of the Holy Prophet (peace be upon him) in this judgment which are usually quoted by different people while discussing the issue in hand. However, I consider the following references may serve the purpose of understanding the real concept of evidence in Islam. Verses of the Holy Qur'an;

1. SA:

135. O ye who believe. ‑ Stand out firmly For justice, as witnesses;, To Allah, even as against Yourselves, or your Parents. Or your kin, and whether , It be (against rich or poor) For Allah can best protect both Follow not the lusts (Of your hearts), lest ye Distort (Justice) or decline To do justice, verily Allah is well‑acquainted With all that ye do.

2. S.5:

8. O ye who believe! Stand out firmly For Allah, as witnesses To justice, and let not The hatred of others To you make you swerve) , 'To wrong and depart from Justice. Be just: that is to Next to Piety: and fear Allah For Allah is well‑acquainted with all that ye do' (S.VIII: 28) And know ye' That your possessions And your progeny Are but a trial; , And that it is Allah With Whom lies Your highest reward. Ahadith of the Holy Prophet (peace be upon him) Narrated by Umar‑bin‑Shoaib:' "Evidence of those males or females is not admissible who are guilty of breach of trust or adulterer or adultren or enemy even if brother, ‑ or dependent of house‑holder (means slave, servant, wife, G‑9 by. I. children etc.) (Abu Dawood) Narrated with reference to Umer‑bin‑Al‑Khatab: "People of my period are the best, than those who come after them (means next'' generation) then those who come after them (mean third, generation). After that falsehood will prevail to such extent that people would testimony even if not called do testimony and would start taking oath even if not called to take oath:' (Jams Tirmazi Abwab‑e‑Shahadat)

17. On the bases of verses of the Holy Qur'an and the Ahadith of the Holy Prophet (peace be upon him), the Muslims have unanimous view regarding admissibility of evidence of relatives against relatives but there is difference of opinion regarding admissibility of evidence, of relatives in favour of relatives. The "Hanaf's" doctors of law consider that evidence of close and blood‑related persons in favour of relatives is inadmissible. Contrary to this view, the "Shaft's" and the "Shins" schools of thought are of the view that such evidence is valid and admissible. So far as the "Hanifis" are concerned they are of the view that verse of the Holy Qur'an clearly shows the admissibility of evidence of relatives against the relatives and the Ahadith further confirm that evidence of dependents in favour of their house‑holder should not be accepted or be not treated admissible. The contrary view was discussed by Ibn‑e‑Qayyam‑Al‑Juzia (Shamshuddin Abu Abdullah Muhammad Bin Abu Bekr bin Ayub A1 Zaree who died in 571 A.H.). In his scholarly work known as Aulamul‑Moqieen‑an‑rabil‑Aulmeen) Ibne Qayyum‑Al‑Juzia tried to prove, with 'strongly‑worded arguments, that evidence of close relatives is favoy of relatives is admissible., According to Ibn‑el‑Qayyam‑Al‑Juzia all Verses of the Holy Qur'an are general on this issue and there is not a single verse which may‑have prohibited the relatives to stand witnesses in favour of their relatives. It was also claimed by the great scholar of his time that Hazrat Umar bin‑Al‑Khatab, Hazrat Umar‑bin‑Abdul Aziz, Qazi Shurih, Hazrat Abu‑Baker bin‑Muhammad‑bin‑Umar‑bin‑Hazm have always treated evidence of relatives in favour of relatives admissible. (Contrary view of Qazi Shurih was mentioned by Allama Jalaluddin Sayuti in his book of history known as "Tarikhul Khulafa"). Ibn‑ul‑Qayyam was the great scholar of his time who discussed the opposite view in detail by taking into consideration the possibilities of partiality, favouritism, kinship, interest etc, which can render any testimony untrustworthy. But with profound respect for the great scholar in can be said with certainty that moral degradation in the present age, especially in the sub continent was not so common during the age of lbn‑ul‑Qayyam. Hence it would neither be useful nor feasible to reproduce all what was stated by Ibn Qayyam in his scholarly work except to say that the views expressed by the great scholar were not without force. However, Constitutionally being bound to follow the law of the country, every Judge is bound to deal each and every matter in accordance to the relevant provisions of law prevailing in the country i.e. the Qanun‑e Shahadat Order, 1984.

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

3. Who may testify.‑ All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them; or from giving rational answers to those questions, by, tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind: Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence: Provided further that the provisions of the first. proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways: Provided further. that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness, and, where such witness is not forthcoming, the Court. may take the evidence of a witness who may be available. Explanation.‑ ‑A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. Article 3 of the Order, 1984 was introduced in place of section 118 of the repealed Act. Three provisos to Article 3 of the Order were not existing previously with section 118 of the Act otherwise both are the same. A bare reading of Article 3 of the Order, 1984 shows that all persons, i no matter they are relatives or not, are competent to give evidence if‑‑ (a) (i) they possess physical ability of understanding the questions put to them; and (ii) they give rational answers to these questions. If any witnesses are prevented from understanding . the questions put to them or from giving rational answers due to tender years, extreme old age,' disease whether of body or mind or another cause of same kind or due to lunacy (as per illustration in Article .3 of the Order) then he/she may not be treated to be a competent witness. (b) Second condition of competency, other than the physical ability pertains to moral qualities of a witness. It require a witness to give evidence which should always be free from fear, favour, hatred, bias, love, lust, . affection and enmity. Regarding 'this condition of competency third proviso to Article 3 of the Order. makes it I imperative for the Court to determine the competence of a witness in accordance with the qualification prescribed icy, the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In case such witness in trot forthcoming, the court may take the evidence of witness who may be available

19. Although it was mentioned in the 3rd proviso to Article 3 of the Order, 1984 that the Court shall determine the competence of a witness in accordance with qualifications prescribed by the injuctions of Islam as laid down in the Holy Qur'.an and Sunnah for a witness yet the details of such qualifications were avoided to be mentioned in the Order 1984. Perhaps it was presumed by the legislators that most of the Presiding Officers of the Court were well‑conversant with the Holy' Qur'an and the Sunnah on the law of Evidence. So far as the Holy Qur'an is concerned no believer has any dispute on its universalism but this bitter reality cannot be denied that several books of A hadith which are recognized by one sect are usually not accepted by other sects. Moreover starvation of real scholars in the. present age has increased the number of compilers who presented their books or booklet in accordance to the views of any specific Imam. Such kind of compilation has done no service to humanity but has only strengthened sectarianism. So far as the Judges of Courts are concerned they are not supposed to follow any specific imam, spiritual leader or religious sect, even in spite of their deep attachment with them. Judges belong to an elite of erudites who are expected tea work as thinkQ~s ailed its capacity o;f Juagv., cat an Islamic Stag: trey are bounull to judge which v=iew of the Must‑' in scholars is closest to unixc rsatism because Islamic principles of justice are universal in their nature and sectarianism of parochialimi, do not have any scope in it. They are also 'expected to possess faculties of cogitation to harmonize conflicting views of scholars with the help of juristic deductions including Qisas, Istihsan, Istidlal and Ijtihad. Although it is stressed from certain religious corners that doors of Ijtehad (juristic exposition) had been closed since long but no one tells:‑‑ (i) Who closed the door of Ijtehad?; (ii) When they were closed?; (iii) Is there any verse of the Holy Qur'an or Hadith of the Holy Prophet (peace be upon him) according to which Ijtehad had to come to an end at any state?; (iv) If doors of Ijtehad are closed, then what source is left for legislation to meet new problems to be faced by any nation?; I think that doctrine. of Imam Shafi's that "the voice of people is the voice of Allah Almighty" possesses universal characteristics which curbs the sectarian's approach of any sect on the issue Of Ijtehad. I am of the view that legislation done by chosen representatives of people ,legislative assemblies and juristic deduction by the Judges of Courts on the bases of juristic equity anti public good symbolizes the said concept of Imam Shah. 20, Adopting any of the extreme views and ignoring the outer views of different sects would amount to putting the Judicial seat to legalize and justify sectarianism. I am of the view that by taking into consideration the whole discussion of the foregoing paragraphs judicial harmony on this vital issue can be achieved lay putting aside the sentiments of sectarianism. The outcome of the above discussion can be summarized in‑ the following few lines beat this summary ,persuasive in its nature for other Judges of the Hon'ble High Court unless a seal is put by the Honourable Supreme Court to uphold the same:‑_ "Evidence of a witness is for Justice to Allah (S,4.135) or for Allah to Justice (S::8). Therefore, combined effect of the two verses of the Holy Qur an shows nothing except that evidence in its real sense is neither for favouring nor opposing any party but is to promote Justice for the sake of Allah Almighty. Therefore, at the time of 'giving evidence a witness should riot hesitate tot testimony even against his/her own interest or the interests of his/her close relatives because protection of interests of any party ties with Allah (S.4:1). As Justice is next to piety, therefore any person, no matter he/she is of any faith, can be symbol of piety if Justice is done by that person. Moreover, Justice is not the fief of any nation, thereof; piety also mot be the fief of any class of believers or athiestsa peal Justice can only a done when witnesses give, evidence based or. truth: hire evidence of a witness reflects enmity, bias, lover lust etc. against or in favout of a person then such evidence is net admissible. If evidence of a witness in favour of a party is not objected by or no doubt is expressed about the evidence of that witness by the opposite‑party then such evidence be treated admissible provided the Judge of the Court is also satisfied that the evidence f that witness is free froth partiality, favoritism and inducement etc, If the evidence of such person created some doubt in: the minds of common person about partiality or favoritism, then the same may not be treated admissible unless corroborated by outer pieces of evidence. Same is the position of evidence of slaves or servants in favour of their roasters, wives in favour of their husbands or children in favour of their parents arid vice versa provided they are dependent upon the house‑holders. As the moral degradation in the present age is at its climax, therefore, it would be proper riot to accept evidence of relatives in favour of relatives when there is no corroboratory evidence to support the same." ‑ The above summary can be read with the cases quoted in different Books of History as well as from the judgments of the Supreme Court. For example, Tareekhul‑Khulafa by Allama Jalaluddin Syuti published by Madina Publishing Company, Karachi mentions a case on page 273 with reference to Durraj between Hazrat Ali versus one Jew regarding ownership of one armour tabled before Qazi (means a Judge) namely, Hazrat Shurih. Hazrat Ali (R.A.) had claimed that the armour in dispute. which was in possession of the Jew was his lost armour while the Jew claimed that he was the owner of that armour. Witness produced by Hazrat Ali (RA.) in support of his claim were his slave Qambar as well as his son Hazrat Hassan (R.A.). The opponent was a Jew who had different faith as of Hazrat Ali and he could propagate that a Muslim Judge had favoured the. Muslim Caliph of Holy Prophet Hazrat Muhammad (peace be upon him). The Judge was not w ready to accept their evidence because it was evidence of closely related persons in favour of Hazrat Ali without any corroboratory evidence and not, against the interest of claimant. There is no doubt and even the Judge had no doubt that the claimant and his witnesses were speaking truth and nothing but truth but it was against the basic principle of Justice regarding the concept of interested witness and the decision in favour of Hazrat Ali could become a precedent for future besides giving a weapon in the hands of enemies to propagate against independence of Judiciary in Islam. It is notable that claimant and his witnesses were among the Sahabies (Companions of the Holy Prophet, peace be upon him) while the Judge namely Qazi Shurih was a "Taubie" (means belonging to the next generation of Sahabies). . Another example is the status of "approver's evidence", which can be ascertained from the famous case of State v. Zulfiqar Ali Bhutto (PLD 1978 Lahore 523). Actual murderer in that case had become approver he was interested to save his life by serving the interests of Zia's Martial Law Regime to assassinate Mr. Zulfiqai Ali Bhutto. Before assassination of this Great Leader, General Zia introduced Shariat Benches of Superior Courts to show that he was determined to bring Islamic Laws in Pakistan. When status of approver was challenged before the said Shariat Bench at Karachi, the petition was admitted for regular hearing and notices were issued to the Federation of Pakistan. However, when the application for stay of execution was moved before the said Bench it could not be heard because of member of the said Bench (Mr. Justice Dr. I. Mahmud, as he then was) had fallen ill and the Honourable Chief Justice (Mr. Justice Abdul Kadir Shaikh, as he then was) of the Sindh High Court had not agreed to constitute a new Bench on the day when the same was fixed for hearing. Resultantly, the dawn of the next day brought the news of assassination. Shariat Benches of Superior Courts were abolished and replaced by Federal Shariat Court. All pending Shariat Petitions, including the one mentioned above, Were heard and disposed of by the Federal Shariat Court vide main judgment written by Mr. Justice Aftab Hussain who had. also written the judgment in the case of State v. Zulfiqar Ali Bhutto (supra). After about12 years from 1979 the Federal Shariat Court decided the scope of approver in Islam which could be easily decided before the assassination of Mr. Zulfiqar Ali Bhutto. True scope of approver's evidence with reference to the concept of Interested witness can be ascertained from the judgments reported in PLD 1978 Lahore 523, PLD 1979 SC 53, PLD 1980 FSC 1, 1983 SCMR 1127, PLD 1989 SC 633, PLD 1991 FSC 139 and 1994 SCMR 932). In the light of weighty observations made by the Honourable Judges of the superior Courts, I have the least hesitation in my mind to hold that the P.Ws. who deposed against the present appellant in this case were not interested witnesses from any angle whatsoever because neither any interest of those witnesses was apparently evident nor the appellant or the defence had brought into light any possible or expected interest of those persons at any stage of the case.

21. After going through the evidence recorded by the trial Court and considering the circumstances and facts which remained unshattered during cross‑examination, no room is left for any sensible person but to believe that it was only Muhammad Din who had fired upon deceased Abdul Rahim. It is notable that no defence theory was advanced on behalf of the appellant during cross‑examination of ,the witnesses except a crippled stand taken at belated stage when statement of appellant was recorded under section 340(2), Cr.P.C. on 15‑4‑1993. Relevant portion of the statement runs as under:‑‑ "In year 1987 he (means complainant Muhammad Miskeen) requested me to get one house constructed in my supervision situated at sector 9 Nai‑Abadi Muhajir Camp. I supervised the construction and completed the same .till year 1988 when the said Miskeen levelled allegation of misappropriation of funds against me, the dispute was placed before the Jirga which declared me innocent and one Rahim Chacha (who) was elder of the both, insulted the complainant for levelling false allegation against me on which the complainant was annoyed with me and issued threats for taking revenge. Unfortunately his brother was shot at the hands of some unknown person and he found a good chance for taking revenge from me and thus implicated me in this false case. I am innocent. I have committed no offence." This defence theory is not too convincing to be believed on several grounds which can be summarized as under:‑‑ (i) Muhammad Miskeen, against whom this story was concocted, did not support the prosecution and tried to safe the appellant by suppressing his name while deposing in the Court. (ii) This defence did not disclose anything why other. P.Ws. deposed against the appellant. (iii) No question was asked or suggestion was put to any P.W. at any stage in support of this defence story/theory. (iv) No member of Jirga was examined in support of this defence and to corroborate the version of the appellant.

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

23. The accumulative effect of all what has been discussed above, in the light of roles played by each character of prosecution story, brings the conclusive episode of this appeal to an end with the following conclusions and decisive order:‑‑ (e) (i) Lesser penalty of imprisonment of ten (10) years would better serve the ends of justice, in peculiar circumstances of the case. Hence the same is imposed instead of upholding the sentence of i imprisonment of life on account of my view that act of the appellant attracts section 304, P.P.C. and not section 302, P.P.C. (as they were prior to the promulgation of Oisas and Diyat Ordinance)., (ii) Fine of ks. 5,(X10 (Five thousand) is enhanced to Rs. 20,000 (Twenty thousand only) and in case of non‑payment, the appellant shall suffer '. ' three years' R.I.; ` But (iii) The appellant is ordered, in term of section 544‑A, Cr.P.C. to pay. .; compensation of Rs.2,00,000 (Rupees two lac only) instead of Rs. 25,000 to the legal heirs of the deceased or to suffer five years' R .I. Except the sentence of non‑payment of compensation to the legal heirs, the remaining two substantive sentences as mentioned in paras. a(il anti a(ii) above shall run concurrently. In case the amount of fine and compensation is paid by the appellant, the entire amount should be paid to the legal heirs 61 deceased Abdul Rahim after their proper verification by the District and Sessions Judge in whose jurisdiction they are residing; (b)‑ The appellant is entitled to the benefit of section 382(1), CrP.C. (c) Although. offence,, in - this case, was committed prior to the promulgation of Qisas and Diyat Ordinance but proceedings were completed after the said Order came into force. Hence the right of compromise would be available to the parties. . (d) If any of the legal heirs pardons the appellant, then only the sentence of compensation mentioned in para. a(iii) above would be reduced to the extent of his/her share. With the above modification in the sentences, the appeal is dismissed. N.H.Q./M-2083/K Order accordingly.