1996 P Cr (PLP)

10. As the next contention of the learned counsel for the appellant is, concerned that Akalgarh Police Station was in their way and they did not inform the incharge of the Police Station of Akalgarh nor he made any report at Mirpur Police Station. It has no substance because at that time, as stated above, the complainant was worried about the life of the victim. He was not much interested for initiating proceeding against the accused but he was more interested in saving the life of the victim which was quite obvious. Therefore, he could not lodge the report at the aforesaid police stations

11. As the further contention of the learned counsel for the appellant is concerned that in the F.I.R. it is stated that Muhammad Saddique reached on the place of occurrence, and he informed the complainant about the occurrence, but he did not appear as a witness, therefore, the evidence of the complainant has no value in the eye of law. I agree with the contention of the learned counsel for the appellant. In F.I.R., it is stated that on the information of Muhammad Saddique, the complainant alongwith Shabir and Ilyas reached the place of occurrence. According to the F.I.R., the complainant was informed by Muhammad Saddique, but Muhammad Saddique did not appear as a witness. The complainant himself has not seen the occurrence nor he was present at the place of occurrence. According to the F.I.R., the occurrence was narrated to the complainant by the said Muhammad Saddique. When according to the F.I.R., the evidence of complainant Muhammad Zaman is based on the information of Muhammad Saddique, then it is obvious that Muhammad Saddique told about the occurrence to the complainant, when he reached on the place of occurrence. He incorporated the story in the F.I.R. on the basis of the information furnished to him by Muhammad Saddique. Therefore, the F.I.R. was evidently hearsay and not admissible in the evidence under Article 71 of Qanun‑e‑Shahadat, for comprehending Article 71, I would like to reproduce it:‑‑ "

71. Oral evidence must be direct.‑‑‑ Oral evidence must, in all cases whatever be direct; that is to say:‑‑ If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it mi‑t be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who, holds that opinion on those grounds Provided ..... Provided also .... " The word "must" appearing in the opening part of this Article imposes a duty upon the Court to insist upon the production of direct evidence. The use of the word "must" conveys the basic intention of the Legislature. In interpretation of Statutes, the intention of the Legislature is of supreme importance. For ascertaining the intention and purpose of the Legislature one has to divert towards the words used in the Statute. A Statute is to be expounded according to intention of its maker and if the words used in the Statute are precise and unambiguous, no more is required than to expound those words in their natural and ordinary sense. The words themselves will pretend the basic intention of the Legislature. The aforesaid view finds support from the Maxwell's Interpretation of Statutes, Eleventh Edition, p. 1, which reads as under:‑‑ "A Statute is the will of the Legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of them that made it. " If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. The intention of the Legislature as embodied in the Statutes constitute the law thereof. It is the essence of a Statute. While interpreting the Statutes one must free the expression from any meaning or concept, which may shade, obscure or completely hide its true nature and purpose. Naturally, the legislative purpose is the reason, why the particular enactment was passed by the Legislature. The words used in Article 71 "Oral evidence must in all cases whatever be direct" are very simple and clear. These words indicate that the basic intention of Legislature was to rely upon the direct evidence and according to the aforesaid principle only the direct evidence was made admissible. The Court while interpreting the Statutes will keep in consideration the basic purpose of the legislation. The word "must" conveys that the basic purpose of Article 71 was to only consider the direct evidence. By using the word "must", the Legislature intended that the reliance should be placed only on the direct evidence. It is also well‑celebrated principle of law that whenever a statute or a document is to be construed it must be construed according to the ordinary general meaning of the words used in the Statute. Another well‑recognised rule of interpretation was to give plain meaning to the words and expression used in the Statute. Because the intention of the Legislature is to be ascertained from the language used in the Statutes. This principle was analysed in Craies on Statute Law, 7th Edn. at p.92, which reads as under:‑‑ "With regard to what is meant by the expression, the plain meaning of the words of a statute', it ' is necessary on all occasion to give the Legislature credit for employing those words which will express its meaning more clearly than any other words; so that if in any particular instance it can be shown that where there are two expressions which might have been used to convey a certain intention, but one of these expression will convey that intention more clearly than the other, it is proper to conclude that, if the Legislature uses that one of the two expressions which would convey the intention less clearly, it does not intend to convey that intention at all, and in that event it becomes necessary to, try to discover that intention it did intend to convey. " The plain and the simple meaning of the words used in Article 71 conveys that only the direct evidence is admissible and it is mandatory to rely upon the direct I D evidence and indirect evidence is not admissible. While commenting on the hearsay evidence, N.D. Basu‑‑ in his Law of Evidence, 9th Edition stated as under:‑‑ "It seems agreed that what another has been heard to say is no evidence, because the party was not on oath, also because the party who is affected thereby had not an opportunity of cross‑examining. Ken, C.J., in Coleman v. Suthwick (1) as quoted by Basu, at p.908 of his Law of Evidence (9th Edition), has summarised the rule of hearsay as follows:‑‑ 'Why not produced S to testify what he told the defendant, instead of resorting to a by stander who heard what he said hearsay testimony is from the very nature of it attended with all such doubts and difficulties, and it cannot clear them up. A person who relates a hearsay is not obliged to enter into any particular; to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to recover any ambiguities; he entrenches himself in the simple assertion that he was told so, and bases the entire burden on his dead or absent author ... The plaintiff by means of these species of evidence would be taken by surprise and he precluded from the benefit of cross‑examination of S as to all those material points which have been suggested as necessary to throw full light on his information. Monir at page 692 of his Law of Evidence (1974 Edition) has, under the heading 'reasons for the exclusion of hearsay', this to say on the subject. The rejection of hearsay is based on its relative untrustworthiness for judicial purposes owing to (i) the irresponsibility of the original declarant, whose statements were neither on oath, nor subject to cross‑examination; (ii) the depreciation of truth in the process of repetition; and (iii) the opportunities for fraud, its admission would open; to which are sometimes added; (iv) the tendency of such evidence to protract legal inquiries and (v) to encourage the substitution of weaker for stronger proofs. The aforesaid view lends full support to the principle enunciated in Article 71 of Qanun‑e‑Shahadat, to reject all the hearsay evidence to prove any fact, which in its nature is susceptible of direct evidence by a witness, who can speak from his own knowledge being under (sic) oath, and has to face the cross‑examination. The crux of the above discussion is that evidence of A who states that it was told to him by B would only be admissible in the evidence in proof of the fact that the said statement had actually been told to him by B. But the same will be inadmissible in proof of the contents of the statement unless B appears and states that he told such and such to A.

12. In the light of what has been stated above, the evidence of the complainant was a hearsay evidence, it would have only been admissible if Muhammad Saddique would have appeared as a witness and stated that he narrated the whole occurrence to the complainant, but Muhammad Saddique did t not appear as a witness, therefore, the F. I. R. lodged by the complainant was not admissible as required under law. This view finds support from PLD 1964 Kar 428.

13. As far the next contention .of the learned counsel for the appellant is concerned that only one eye‑witness, namely, Muhammad Shabir was nominated in the F.I.R. neither Baker nor Khadam Hussain was cited as witness in the F.I.R. Further improvement was made, therefore, no reliance can be placed on the statements of Baker Hussain and Khadam Hussain. As stated above, that the complainant was not an eye‑witness. He was not present at the place of occurrence, but he reached the place of occurrence after the occurrence had taken place. When he reached on the place of occurrence, at that time, Shabir and Baker had left the place of occurrence, therefore, if he has not nominated Baker and Khadam eye‑witnesses, then, it will not make any difference because he has not seen them on the place of occurrence. Even otherwise, the F.I.R. is just a document for bringing the Investigating Agency into operation. It is not necessary that each and every detail should be mentioned in the F.I.R., if the complainant would have been an eye‑witness, then, it was necessary for him to nominate all the eye‑witnesses present at the place of occurrence during the occurrence. While the complainant himself is not an eye‑witness of the occurrence. He himself heard about the occurrence from other person. Even otherwise, the F.I.R. lodged by the complainant is a hearsay on which no reliance can be placed, nor the statement of the complainant attains any value. Then if he has not cited the eye‑witness, it will not make any difference.

14. As the next contention of the learned counsel for the appellant is concerned that in F.I.R., it is stated that the appellant inflicted injury on the head of Muhammad Hanif from the front side of his hatchet, but according to the opinion of the doctor, all the injuries were caused with the blunt weapon. No doubt that the complainant stated in the F.I.R. that the first injury was caused from the front side of the hatchet on the head of the deceased by the accused. As stated above, that the complainant was not an eye‑witness nor he saw the accused while inflicting injuries on the person of the deceased, but the occurrence was witnessed by Muhammad Shabir, Baker Ali and Khadam Hussain. None of these three eye‑witnesses stated that the injury from the front side of the hatchet was inflicted to the deceased by the accused‑appellant. If any of the three aforesaid witnesses would have stated that the injury from the front side of the hatchet was caused by the appellant, only then, it would have been material.

15. As the contention of the learned counsel for the appellant is concerned that Khadam Hussain stated that Muhammad Hanif was lying on the ground from where he tried to pick him up but he could not pick him up, Shabir made an effort for providing water for drinking on the ground, whereas Muhammad Shabir stated that Bashir picked him up and kept the head of the deceased in his lap and made effort for providing water to drink. It has no substance No doubt Khadam Hussain P.W. stated in his statement that we tried to pick him up, but he could not be picked up. Shabir tried to provide water for drinking on the ground but he could not drink. He has also stated that Muhammad Saddique picked him up and kept him in his lap but he could not speak. There is complete unison on the aforesaid point among the witnesses Shabir and Khadam Hussain. Shabir P.W. also stated in his cross‑examination on the last page of his statement, that Muhammad Saddique picked up the head of the deceased Muhammad Hanif and kept it in his lap and he made an effort to provide water for drinking to the deceased, but he also stated at page 5 in his statement that Muhammad Saddique said to him to bring water and he made an effort to provide water for drinking to the deceased, in the presence of Baker and Khadam Hussain, but Hanif deceased could not drink the water, therefore, there is complete concordance among the statements of both the witnesses on the aforesaid point.

16. As the next contention of the learned counsel for the appellant is concerned that there is a contradiction between the statements of Nazim Hussain witness of recovery and Muhammad Younas. According to Nazim Hussain, the hatchet was produced by the accused‑appellant Muhammad Ramzan in his presence, whereas Muhammad Younas stated that the hatchet was produced by the father of the accused‑appellant. No doubt, that this is a serious contradiction among both the witnesses, but it also cannot be ignored that Sardar Muhammad Saleem, S.I. Police also appeared as a witness, who made the recovery and prepared the recovery memo. of the hatchet (the weapon of offence). He deposed in his statement that he recovered the hatchet (the weapon of offence), at the instance of the accused and prepared the recovery memo. Exh.P.Y. This portion of his statement was not challenged during the cross‑examination. Only two questions were asked from him during the cross‑examination. No question regarding the recovery of the hatchet was asked from him, thus; his statement, that the recovery of the hatchet was made at the instance of the accused, is admitted to the accused‑appellant. It is well‑celebrated principle of law that any portion of the statement not challenged during the cross‑examination, shall be deemed to be admitted one, therefore, although Nazim Hussain and Muhammad Younas P.Ws. failed to prove the recovery of hatchet, but from the evidence of Sardar Muhammad Saleem, S.I. Police the recovery of the hatchet (the weapon of offence) is proved, beyond any reasonable doubt.

17. Another important point was raised by the learned counsel for the appellant that Shabir and Baker are the chance witnesses, therefore, the Court should be more cautious while relying upon the testimonies of the chance witnesses. No doubt, the Court should be cautious while relying upon the statement of chance witness, but the question emerges whether Shabir and Baker were chance witnesses? A chance witness is one who has no plausible explanation for his presence near the place of occurrence at the time of occurrence and he just reached on the place of occurrence by way of chance. A witness who gives acceptable explanation for his presence at the place of occurrence cannot be considered as a chance witness. As Shabir and Baker were concerned, they were the students of school. On the day of occurrence, they were coming towards their houses from the school. They did not reach the place of occurrence by a chance; but it was their usual way of the house from the school. A person using a particular way daily cannot be considered as a chance witness, if some unfortunate incident takes place in the way while he was passing from there. They did not reach on the place of occurrence by way of a chance. So they were not the chance witnesses, but they can be called the natural witnesses, of the occurrence. This view finds support from PLD 1971 Kar. 239, 1991 PCr.LJ Note 15 at p.10 and PLD 1991 SC 397.

18. According to the version of the prosecution, Shabir, Baker and Khadam Hussain were the eye‑witnesses of the occurrence. Shabir Hussain deposed before the Court that on 7‑3‑1991, he and Baker Ali were going towards their houses from the school, while Muhammad Hanif (deceased) was going towards Pariy Bazar. He met Muhammad Hanif. Muhammad Hanif asked them that why they came early from the school. Upon which he told him that today is Thursday so, he came earlier from the school. He inquired from Muhammad Hanif that where he is going? Upon which, he narrated that he is going to Pariy for bringing sweet on the occasion of the birth of his second child. They were talking meanwhile Muhammad Ramzan appellant appeared and inflicted injury on the head of Muhammad Hanif with the hatchet. Muhammad Hanif fell down then he inflicted another injury from the said hatchet. At the time of occurrence, he, Baker Ali and Khadim Hussain were present on the place of occurrence. Saddique and Sufi Muhammad Hussain came on the place of occurrence after the occurrence. Baker Ali P.W. also appeared before the trial Court as a witness and deposed that he and Shabir were studying in the Pariy School. They were going towards their houses, in the way Khadam Hussain was grazing his goats. Muhammad Hanif met them in the way. He asked from them, why they came early from the school, they told that today is Thursday, then he inquired from Muhammad Hanif that where he is going? Upon which, he narrated that he is going towards the shop. Meanwhile, accused‑appellant came there and inflicted injury with the hatchet to Muhammad Hanif, who fell down, then he inflicted another injury on the left temporal region. They raised noise upon which Muhammad Saddique and Muhammad Hussain reached there. Khadam Hussain P.W. also appeared as a witness and he stated that on 7‑3‑1991, he was grazing his goats, Shabir and Baker P.W.1 were coming from Pariy. He shook hand with Shabir P.W. They asked him to accompany them, but he did not accompany, as he was grazing his goats. They went away. Muhammad Ramzan also came there and shook hand with him and demanded the hatchet from him for seeing. After taking hatchet, he started walking. He demanded the hatchet from him, upon which he said 'stop, I shall give it to you' and started walking. He also followed him, he saw Shabir and Muhammad Hanif while shaking hands and talking with each other. Muhammad Ramzan accused inflicted injury with hatchet on the head of Muhammad Hanif (now deceased). He fell down, then he inflicted another injury upon the temporal region of Muhammad Hanif (now deceased) and appellant Muhammad Ramzan ran away from the place of occurrence alongwith the hatchet. They raised noise. He, Baker and Shabir witnessed the occurrence. There is a complete unison among them, regarding the:‑‑ (i) Place of occurrence; (ii) Manner of occurrence; (iii) Time of occurrence; (iv) Weapon of offence. Although these witnesses were cross‑examined, but no capital could be made out during the cross‑examination.

19. No enmity was suggested, by the defence to all the aforesaid three witnesses. Neither they were having any enmity with the accused, nor they were closely related to the deceased. It is also notable that simply on the basis that the witnesses have no enmity and appears to be independent do not necessarily mean that what they state is true. Indeed, absence of malice is a factor which assumes importance in assessing the credibility of the witness and place him in a favourable position, but it is not the sole criteria. The truth or falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. Accepting the evidence without considering the circumstances would be totally inconsistent with the dispensation of justice. It is only the scrutiny of the evidence which makes it possible to say with certainty that the evidence is immune from all taints and is worthy by belief. As stated above that no enmity was suggested to the aforesaid three eye‑witnesses, but simply on the basis that the witnesses have no enmity with the deceased, their evidence shall not be admitted, but their evidence shall be appreciated alongwith the other evidence, if the other evidence also lends corroboration to their evidence and then, their evidence shall be considered as convincing one.

20. I have gone through the entire statements of the aforesaid three eye witnesses and after utmost muse did not find subtle doubt about the presence of the eye‑witnesses at the place of occurrence. There is no such contradiction among the statements of these three eye‑witnesses from which a conclusion can be drawn that any one of them was not present at the time of the occurrence and has not seen the occurrence. There is a complete concordance and their evidence regarding the time of occurrence, place of occurrence, manner of occurrence and weapon of offence is quite reluctant. When there is complete unison among the witnesses on the aforesaid points and they were having no enmity with the accused‑appellant or any relation with the deceased then their evidence is above from any doubt and is inspiring confidence.

21. As the evidence of the recovery of the hatchet is concerned, there is a contradiction between the witnesses of the recovery, Nazim Hussain and Muhammad Younas, but it will not make any difference because the Investigating Officer appeared as a witness. He deposed that the hatchet (the weapon of offence) was recovered at the instance of the accused‑appellant. He was not cross‑examined on this point, therefore, the recovery of hatchet is admitted one. The version adopted by the aforesaid three eye‑witnesses is also supported from the evidence of the recovery.

22. It is also pertinent to note that Dr. Muhammad Bashir appeared as a witness and he also corroborated the story put forward by the prosecution.

23. Although as stated above that the F.I.R. was not admissible and no reliance can be placed on the statement of Muhammad Zaman complainant, but as stated above that in a criminal case the grain has to be sifted from the chaff. Therefore, leaving aside the F.I.R. and the statement of the complainant, the prosecution has proved the case beyond any reasonable doubt from the:‑‑ (i) Evidence of eye‑witnesses; (ii) Evidence of Sardar Muhammad Saleem, S.I. regarding the recover of hatchet (the weapon of offence); (iii) Evidence of Dr. Muhammad Bashir, who conducted the post‑mortem: (iv) Report of Chemical Examiner.

24. Now the question requiring determination is whether in the circumstances of the case, the sentence of Qisas could be awarded to the appellant or some other sentence shall be sufficient to meet the ends of justice. The perusal of the record shows that the appellant was a young boy of 18 years old at the time of occurrence. He did not come from the house armed with any weapon of offence. If he would have any intention to commit murder, then, he would have armed with some weapon. There is also nothing on the file from which it can be said that the appellant was aware of the fact that the deceased Muhammad Hanif will go to Pariy Bazar for bringing the sweet on the occasion of the birth of his second child, nor he was sitting in the way with a planning but while passing from the way, he saw Hanif deceased passing from there and took the hatchet from Khadam Hussain and inflicted the injury on the head of Muhammad Hanif deceased. He fell down. He did not commit the instant occurrence with pre‑planning, but the occurrence was committed on the spur of the moment. The question of sentence requires utmost care. The sentence must be measured in golden scale and should be properly balanced to deter the rest of the society from committing the crime, without being unnecessary harsh.

25. In a murder committed on the spur of moment without any pre planning, the life imprisonment will be sufficient to meet the ends of justice. This view finds support from PLD 1975 Lah. 619 and 1974 PCr.LJ 1088.

26. Keeping in view the age of the accused‑appellant and the circumstances in which the murder was committed, the life imprisonment shall be sufficient to meet the ends of justice. Thus, the sentence of Qisas is converted into the life imprisonment. As the sentence of Qisas had been converted into the life imprisonment, therefore, no question arises for the confirmation of the sentence of Qisas. Both, the appeal and the reference are disposed of in the terms indicated above. N. H. Q./18/Sh.C. A. Sentence reduced.