P L D 2007 Supreme Court (AJ&K) 20 (PLP)

MUHAMMAD REAZ AKHTAR CHAUDHRY, J.

Through this appeal, the appellants have sought the annulment of the judgment and decree of the High Court dated 29-9-2004, whereby the appeal filed by the predecessors-in-interest of the appellants was dismissed.

2. The relevant and necessary facts for the disposal of the instant appeal are that the predecessors-in-interest of the present appellants (late Muhammad Shafi) brought a suit for declaration in the Court of Sub-Judge Dhirkot. It was averred by him that on 21-5-1984 the learned Sub-Judge Dhirkot passed a decree in favour of defendant No.4 against the defendants Nos.1 to 3 regarding the land measuring 33 Kanals, 11 Marlas comprising Survey Nos.27, 36, 70 situated in village Tahal, Tehsil Dhirkot. This decree was also maintained by the learned District Judge. Feeling aggrieved from the said judgment and decree of the learned District Judge, the defendants Nos.1 to 3 filed an appeal in the High Court of Azad Jammu and Kashmir. During the pendency of appeal a compromise took place between them. According to which the price of the land was fixed Rs.1,85,000 and expenses of the litigation were determined Rs.7,500 which were paid to the defendant No.4 and in "this way a compromise decree was passed in favour of defendants. Nos.1 to

3. It was further averred by him that the defendants instead of executing the sale-deed obtained the compromise decree in order to defeat the right of prior purchase and this decree amounts to a sale-deed. It may be declared that this decree was a sale-deed. The plaintiff has prior right of purchase therefore a decree for possession on the basis of prior right of purchase may be passed in his favour.

3. This suit was contested by the defendants. After the trial of the suit the learned Sub-Judge decreed the suit. The respondents filed an appeal against the judgment and decree of the learned Sub-Judge in the Court of Additional District Judge Dhirkot. This appeal was accepted by the learned Additional District Judge and the decree passed by the learned Sub-Judge was set aside. Feeling dissatisfied from the finding of the learned District Judge (late) Muhammad Shafi, predecessor-in?interest of the present appellants (who was then alive) filed an appeal in the High Court of Azad Jammu and Kashmir which was dismissed. Now the present appeal has been filed by the legal heirs of (late) Muhammad Shafi, as he has died.

4. Sh. Abdul Aziz, the learned counsel for the appellants argued that the learned Single Judge of the High Court has not applied his mind to the evidence and the compromise decree. He referred the compromise decree and submitted that it clearly contains that Rs.1,50,000 was paid as price of the land and Rs.7,500 were paid as expenses of litigation. He further submitted that the learned Single Judge of the High Court has based his judgment on the sole point that finding of fact recorded by the first Appellate Court will prevail on the question of fact, and when there is variance between the finding of trial Court and the first Appellate Court the finding of the first Appellant Court, will prevail. He submitted that no reasoning has been recorded by the learned Single Judge of the High Court, that why he is relying and giving preference to the finding of the first Appellate Court, while the finding of the first Appellate Court is not convincing and inspiring-confidence. He further submitted that the compromise decree passed by the High Court is vague and the learned Judge of the High Court has not gone through the contents of the decree.

5. While controverting the arguments of the learned counsel for the appellants, the learned counsel for the respondents argued that the judgment of the High Court is based on sound, cogent and sagacious reasoning. It does not require any indulgence by this Court. It was submitted by the learned counsel that the plaintiff has failed to establish that the compromise decree amounts to sale. He maintained that the compromise decree clearly contained that Rs.1,50,000 was paid through bank draft and Rs.7,500 were paid as expenses of litigation. The High Court has recorded the compromise and it was a compromise decree. No price of the land was received by the other party.

6. The learned counsel for the respondents was. confronted to explain that what sort of compromise decree was passed by the High Court, whether a decree for possession or a decree of ownership or??? - decree for specific performance of contract was passed by the High Court and on the basis of what right this decree was passed? He was directed to read the decree in the open Court and explain that what sort of rights have been conferred upon the respondents through this decree? The learned counsel for the respondents read the compromise judgment and decree and could not explain that what sort of rights have been conferred by this decree.

7. We have heard the learned counsel for the parties, perused the record and given our utmost muse to the respective arguments advanced by the learned counsel for the parties. In the instant case, the learned Judge of the High Court has based his judgment on the point that if the finding of fact recorded by the first Appellate Court is at variance with that of the trial Court the former will be preferred. There is no cavil with the aforesaid proposition. But it could not be ignored that simply on this ground that there is variance between the finding of the trial Court and the first Appellate Court the preference should be given to the finding of the first Appellate Court has no substance. The finding of the first appellate Court will be preferred only if it is found to be substantiated by evidence on record and it is supported by logical reasoning duly taking note of the reason adduced by the first Appellate Court, which have been disfavoured in the contrary finding. The finding at variance will naturally be compared with the finding of the trial Court and if it is found that the finding of the first Appellate Court is based on strong, cogent evidence and is inspiring-confidence only then the preference should be given to the finding of the first Appellate Court. The preference cannot be given merely on the ground that it is the finding of the first Appellate Court. The learned single Judge of the High Court has placed reliance upon a case titled Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617, but it also contains that the comparison should be drawn between the finding of the trial Court and the first Appellate Court if the finding of the first Appellate Court is based on strong, cogent and convincing evidence then the preference should be given-to such finding. For having proper perception we would like to reproduce the relevant portion of the said report, which reads as under: -- "?????..If the finding of fact reached by the first Appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavourd in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different finding has respectively proceeded. If the finding of the first Appellate Court cannot be supported by the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious,? it will have to be rejected in second appeal." (Underling is our). In the foresaid report it has been clearly laid down that a finding of the first Appellate Court will be immune from interference if it is based on a substantial evidence on the record and it is supported by a logical reasoning and where there is variance between the finding of the trial Court and the first Appellate Court then the Court has to draw a comparison between the merits of both the findings and the Court has to consider that which of the two finding is based on solid and cogent, reasoning and if the finding of the first Appellate Court is not supported by an evidence on the record or it has failed to take into account a material piece of evidence or it does not reveal a logical base for differing from the finding of the trial Court then it will have to be rejected. In the instant case, the learned Judge of the High Court has simply held that preference should be given to the finding of the first B Appellate Court. He has not drawn any comparison in his judgment made by the learned counsel for the defence not only accepts the presence of Muhammad Najeeb and Tauseef on the place of occurrence at the time of occurrence but these have eliminated the possibility, that Muhammad Najeeb and Tauseef were not present at the time of occurrence and have not witnessed the occurrence. This view finds support from the cases reported as Sher Ali Khan v. The State 1985 PCr.LJ 8 and Ejaz Mehmood v. The State 1992 SCMR

305. In both the suggestions it was suggested that when Muhammad Najeeb and Tauseef reached in the house of Muhammad Basharat, at that time the accused, his mother, brother and wife of brother had gone out of house for cutting grass which means that it was admitted by them that both Muhammad Najeeb and Tauseef went to the house of Muhammad Basharat on the day of occurrence at the relevant time. It was further suggested to Tauseef that when they reached in the house of accused person, at that time they could stop the accused by catching his hands from firing. In this way it was admitted by the defence that both the witnesses went to the house of Basharat at the time of occurrence, so their presence and witnessing of occurrence was not denied by the defence rather it was admitted. In this way the presence of both the witnesses at the place of occurrence was admitted by the defence during cross-examination. It also could not be ignored that during the cross-examination it was also suggested to Tauseef, P.W.3 that "Mst. Fazarna (now deceased) went to the house of Dilpazir without the permission of Muhammad Basharat while Muhammad Basharat was not having good terms with Dilpazir and she brought forage for the buffalo due to which Muhammad Basharat infuriated and murdered her." In this way it was also admitted by the defence that Mst. Farzana was murdered by Muhammad Basharat but it was claimed that he was infuriated and murdered her but no such evidence was produced by the accused-respondent in support of his version.

17. The learned Judge of the Shariat Court further held that "both the witnesses were close relatives of the deceased, but none of them came to her rescue nor they tried to apprehend the accused after the occurrence. The accused was armed with .12-bore gun but it was a single barrel gun therefore, after-fire it was nothing but mere a stick". It has no substance at all. How it can be said that every person has courage to stand before the gun. It varies from man to man. It could not be said that every person has courage to stand before a person who had a gun in his hands and had already murdered a person. Only some extraordinary, bold and brave person can intervene and stand in such-like situation at the risk of his own life. Therefore, the learned Judge of Shariat Court has wrongly disbelieved both the witnesses of occurrence on this ground.

18. It was further held by the learned Judge that the testimony of these witnesses has also not been accepted as correct by the Investigating Agency to the extent of co-accused, Muhammad Faras, Mst. Arsha Begum and Mst. Bilqees, therefore, a conclusion could be drawn that they were not present on the spot and they did not witness occurrence and falsely implicated the respondent. This finding of the learned Judge of the Shariat Court is also without any substance because in a criminal case it is not the principle that if the evidence of a witness is not believed to the extent of certain accused persons, then it should not be believed against the other accused persons. In a criminal case the Court has to sift the grain from chaff. Therefore, merely on this ground that their evidence was not believed against other co-accused persons, the same should not also be believed against the respondent has no substance. This view finds support from a case titled Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524, wherein it was held as under:‑ "

17. The Shariat Court was also not correct in holding that as the testimony of the prosecution witnesses was disbelieved regarding respondents Nos.2 to 5, the same cannot be believed in respect of Abdul Ghaffar, accused-respondent. It is a celebrated principle of law that a criminal Court has to sift the grains of truth from the chaff of falsehood. Therefore, the testimony of prosecution witnesses can be relied upon against some accused while rejected against the others." It further stultifies us that the learned Judge of Shariat Court held that Muhammad Najeeb and Tauseef were telling lie and making false statement during purgation. They did not offer the prayer of Jumma on the said day because they left for Sunwarian at about 2 p.m. while Friday prayer usually is not completed before 2 p.m. Therefore, they are not It is quite amazing that how the learned Judge said that Friday prayer could not be completed before 2 p.m. Now-a-days there are mosques where even the Friday prayer is completed before 2-00 p.m. and there are mosques where the Friday prayer used to commence at 1-00 p.m. and 1-30 p.m. and complete before 2-00 p.m. This finding of the learned Judge is based on presumption and is not based on any evidence that Jumma Prayer usually ends after 2-00 p.m.

19. The learned Judge of the lower Court has also held that, according to the witnesses, the gun was recovered on 9-10-2004 while the date of recovery was shown as 13-8-2004 because inadvertently wrong date was mentioned. Subsequently an application was moved by Hassan Wazir Afridi, S.H.O. that date of recovery of gun may be read as 13-10-2004 instead of 13-8-2004. This application was allowed through final judgment and no opportunity to raise any objection was provided to the respondent. This finding of the learned Judge is baseless and without any substance. If at all instead of 13-10-2004 was incorporated, an application was moved for the correction of the date. The application was allowed properly because the mistake can be committed by any person and it can be rectified. It was not a civil case in which the objections would have been obtained from the accused regarding the evidence of prosecution.

20. The learned counsel for the respondent submitted that the F.I.R. was lodged with the delay of four hours after the occurrence and it was lodged after consultation of two hours. It has no substance at all. In the instant case the father of deceased was living in a different village. After the murder of Mst. Farzana Bibi, he came on the place of occurrence and the police also reached there. When Police reached on place of occurrence, he immediately moved the application on the same day. Thus the delay of such a short time was quite natural. There was no inordinate delay in F.I.R. and it was lodged promptly. Both the eye-witnesses were mentioned in the F.I.R.

21. It is pertinent to note that while appreciating the evidence of a chance witness, the Court should be cautious and it should ensure that the statement of chance witness finds corroboration from other evidence. The evidence of chance witness should be scrutinized very carefully but it does not mean that his testimony should be acted upon only if the same is corroborated by independent evidence. If the testimony of chance witness finds corroboration from any other circumstance or from any other evidence in the form of recoveries and medical evidence, then that can be relied upon. This view finds support from Abdul Rahid and others v. Abdul Ghafar and others 2001 PCr.LJ 524 wherein it has been held as under:--????? "

It is correct that the testimony of a chance witness should be carefully scrutinized but that does not mean that his testimony should be acted upon only if the same is corroborated by independent evidence. However, it may be observed that in the instant case, there is also corroborative evidence in form of recoveries and medical evidence." It would be also useful to mention here that if a chance witness reasonably explains his presence at the place of occurrences and states about the occurrence in such a way that it inspires confidence and it is also corroborated by any other evidence or circumstances, then the same can be considered along with the other circumstantial evidence. This view finds support from Iqbal v. State 1998 MLD 1372 wherein it has been held as under:-‑ "

The presence of this witness at the spot and his witnessing the occurrence on the fateful night, therefore, was sheer chance and it can conveniently be said that he was a chance witness but his statement cannot be brushed aside simply on this point alone. If a chance witness reasonably explains his presence at the spot and renders narration of the occurrence in such a way that the same inspires confidence and it was further supported by the evidence, which materially corroborates such version, then the same can be considered along with other incriminating evidence."

22. Although Muhammad Najeeb and Tauseef are chance witnesses but their testimony cannot be brushed aside. As stated above that while considering the evidence of chance witness, the Court should be more cautious and careful. The Court should also ensure that the statements of the chance witnesses find corroboration from other evidence or circumstances. If a chance witness reasonably explains his presence at the spot and narrates the occurrence in such a way that it inspires confidence and it is also supported by evidence, then the same can be considered along with other incriminating evidence. In the instant case, as stated above, there is no difference between both the chance witnesses regarding place of occurrence, time of occurrence and the manner of occurrence. Both the witnesses deposed that how they reached on the place of occurrence. There is no contradiction among the witnesses regarding (i) route through which they travelled to the place of occurrence; (ii) time of occurrence and (iii) manner of occurrence. The F.I.R. was lodged promptly. Both the witnesses were mentioned in the F.I.R. Therefore, it could not be said that they were subsequently installed as witnesses. They have no enmity with the respondent as no enmity was suggested to them during cross-examination. Even in the statement under section 342, Cr.P.C., the accused was asked that why did the witnesses depose against him, he simply stated that they deposed against him due to relationship and no enmity was pleaded by the accused. The relationship is no. ground for discarding evidence of the witnesses unless and until their enmity with the accused is established. The statements of both the witnesses find corroboration from the post-mortem report. According to post-mortem report, Mst. Farzanra Bibi sustained fire-arm injuries. Moreover, the respondent fired from near in the mouth of Mst. Farzana Bibi. Therefore, the distance mentioned by the doctor from which the bullet was fired also corroborates the version narrated by both the aforesaid witnesses.

23. Although it is well-settled principle of law that while appreciating the evidence of a chance witness, the Court has to be cautious and careful but at the same time it also could not be ignored that where the chance witness is otherwise absolutely independent and named in the F.I.R. and his deposition is supported by recovery of incriminating article then of course he could not be disbelieved. This view finds support from Irshad alias Shada v. The State 1971 SCMR 655.

24. In the instant case both Muhammad Najeeb and Tauseef Ahmed appeared as witnesses and no enmity with the appellant was suggested to them during the cross-examination. Even the accused in his statement under section 342, Cr.P.C. did not attribute any enmity with them. From the entire evidence it did not transpire that they had any enmity with the accused persons. It is well-settled principle of law that evidence of a witness could not be disbelieved or discarded merely on the basis of relationship, unless and until it is not be proved that the witness was inimical towards the accused. This view finds support from a case titled Muhammad Khalil v. The State 1992 SCR 249, relevant page 254, which is as under:-‑ "

??????????? The mere fact that some of these witnesses are related to the deceased is not sufficient to discard their testimony, especially so when they have not been shown inimical to the accused-appellant. So far as the argument that the eye-witnesses are chance witnesses and could not be relied upon without corroboration is concerned, we are of the opinion that if the testimony of such a witness rings true, it can be relied upon without seeking any corroboration. In the instant case if at all any corroboration is insisted upon, the same is furnished by the recovery of blood-stained hatchet, at the instance of the accused-appellant, and the medical evidence on the record." This view further finds support from a case titled Abdul Khaliq v. Jehangir and another 1999 YLR 1908 wherein it has been held at page 1912 as under:-‑ "

The related witnesses cannot be disbelieved as interested witnesses unless they have a motive to falsely implicate the accused." As such was held in a case reported as Ishaq v. The State PLD 1985 Karachi 595, relevant page 600, which is as under:-‑ "

However, it is a settled law that mere relationship of witness with the victim of the crime is no ground to discredit his testimony."

25. The weapon of offence was recovered from the accused-respondent. It was a .12 bore gun and an empty was also recovered in presence of Muhammad Khurshid, P.W.1, and Muhammad Nazir, P.W.4. There is no contradiction among them regarding (i) time of recovery, (ii) place of recovery and (iii) manner of recovery of gun. The defence has miserably failed to shake the credibility of these witnesses. Therefore, it is also established from their evidence that the gun was recovered from the accused-respondent.

26. So far as the contention of the learned counsel for the respondent that no person from the vicinity was cited as a witness of the recovery of gun and both the witnesses of recovery belonged to different village, while the witnesses from said village were available, therefore, the recovery of gun is doubtful, is concerned, it has no substance. The murder was committed in the village where the accused-respondent was residing while the deceased and her parents were living in a different village. Therefore, it was impossible to produce the witnesses from the village in which the accused was residing. Even otherwise, it is not necessary in every case to cite the witnesses from the same locality. As the relationship of the witnesses with the deceased is concerned, it also has no ground for discarding their evidence. This view finds support from a case reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 which is as under:-‑ "

11. The reasoning given by the Shariat Court that the recoveries of empties and gun were not witnessed by independent witnesses of' the locality and as such the same cannot be considered against the accused-respondent is also not correct. It has been held in a number of cases that strict compliance of section 103, Cr.P.C., is not necessary in case of recoveries or seizure memos made by the Police. Similarly, mere relationship of the witnesses of the recovery memos is not a ground to reject their testimony dubbing the same as doubtful." It further finds support from a case reported as Ballia and others v. the State 1985 PSC 905.

27. It would also be useful to mention here that so far as recovery of gun is concerned, it is merely corroborative evidence and it is not necessary that the corroboration should be from independent evidence. It is sufficient if the version of the eye-witnesses is corroborated from some evidence or any circumstance. This view finds support from a case reported as Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23.

28. The prosecution story is fully established. The two eye-witnesses have seen the occurrence and there is no major contradiction among them. The version narrated by both the eye-witnesses finds full corroboration from the post-mortem report and the evidence of Dr. Naseer Ahmad Shaikh. It further finds corroboration from the recovery of gun and the witnesses of recovery. The prosecution has proved the case beyond any doubt against the accused-respondent.

29. So far the contention of learned counsel for respondent is concerned that accused was not asked by the trial Court to record his statement on oath under section 340 subsection (2) of Cr.P.C., it has no substance. The question arises as to whether it was the duty of trial Court under section 340(2), Cr.P.C. to ask respondent for recording his statement on oath and if the Court failed to ask as such to the accused, then what will be its consequences? . Subsection (2) of section 340, Cr.P.C., was introduced through an amendment in 1985 which reads as under:-‑ "(2) Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on oath in disproof' of the charges or allegations made against him or any person charged or tried together with him at the same trial: Provided that he shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or for which he is being tried, or is of bad character, unless-‑ (i) the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried; or (ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character; or (iii) he has given evidence against any other person charged with or tried for the same offence." The aforesaid provision of law authorises the accused who has not pleaded guilty to appear as a witness on oath in disproof of the charge or allegation levelled against him.

30. It is a recognized principle of interpretation of statutes that while interpreting a particular provision, the Court should ensure that it should be interpreted in such a manner that it should be harmonious with the other provisions of the Act in which the amendment is introduced. The Court should interpret the provision in such like manners that it should remain consistent with the other provisions of law having relevance and nexus with the law sought to be interpreted. This view finds support from a case reported as Mst. Ameer Khatun v. Faiz Ahmad PLD 1991 SC 787 wherein at page 796 it has been provided as follows: "It is a recognized principle of interpretation of statutes that if a provision of law is presenting some difficulty in interpretation, it has to be so interpreted as to harmonize with the other provisions of the Act of which it is a part. It is only when there is a manifest and established failure to harmonize it with the other provisions that it either prevails over other provisions or yields to the other provisions. The second principle of interpretation of statutes relevant to the case is that the provisions of any particular Act are to be so interpreted as to harmonize and to remain consistent with the other laws having a relevance or nexus with the law sought to be interpreted. Finally, the third principle, attracted herein, is that all laws in the field are to be so interpreted as to harmonize with the paramount law to which they must ordinarily conform and if they do not conform, they are struck down as ultra vires the paramount law."

31. Now while interpreting section 340(2) we have to adhere to the other provisions relating to the statement of accused person. Prior to enactment of S.340(2), section 342(4) of Cr.P.C., contained that no oath shall be administered to the accused. In this way there was a restriction on administration of oath to accused, but subsequently Islami Tazirati Qawanin Nifaz Act, 1974 was enacted in Azad Jammu and Kashmir. For the first time a power was given to the Court to record statement of accused on oath. It was entirely the discretion of Court to record the statement of an accused person on oath and the Court was also authorized to use this statement against the accused person. For comprehending it properly we would like to reproduce section 28 of the Islami Tazirati Qawanin Nifaz Act, 1974 which reads as under:-‑ The aforesaid provision clearly lays down that the entire power was given to the Court. It was entirely the discretion of the Court to record the statement of accused on oath, but subsequently when S.340(2), Cr.P.C. was enacted, a right was given to accused person to record his statement on oath. Through this provision of law it was entirely the discretion of the accused person to record his statement on oath or not while prior to enactment of this provision it was entirely the prerogative of the Court to record the statement of accused person on oath or not. Now keeping in view the principle of interpretation of law as laid down in Mst. Ameer Khatun's case, discussed above, the Court had to interpret S.340(2), Cr.P.C. in such a manner that it should remain harmonious and consistent with S.28 of Islami Tazirati Qawanin Nifaz Act, 1974 and S.342(4) of the Code of Criminal Procedure. Section 342(4), Cr.P.C. as stated above, clearly contains that no statement of accused shall be recorded on oath, which means that he shall not be compelled to record his statement on oath, but when section 28 of Islami Tazirati Qawanin Nifaz Act, 1974 was introduced, a power was given to the Court and it was only the prerogative of the Court to record statement on oath or not, but now through section 340(2), a right has been given to accused that he can record his statement on oath if he desires as such. It depends upon the desire of the accused person. The basic purpose of section 342(4) was that the accused shall not be compelled to record his statement on oath. Subsequently through section 28 of Islami Tazirati Qawanin Nifaz Act a power was given to Court lo record the statement of accused on oath and through this provision it was entirely the prerogative of the Court to record the statement of accused on oath or not. But now through section 340(2) a right was given to the accused but it does not mean that the Court has to record the statement on oath even if the accused does not want to state on oath. Even in presence of this provision of law, the Court cannot compel the accused person to record his statement on oath, as stated in section 342(4), Cr.P.C., but if the accused wants that his statement may be recorded on oath then he can request the Court and the Court shall record his statement on oath. Therefore, the interpretation of section 340(2) has to be that it has no compulsion on the accused as well as on the Court to inform the accused about his right. It is entirely the discretion of the accused person to make the statement on oath or not. Neither any adverse inference can be drawn against him if he does not make any statement, nor it is the duty of the Court to remind the accused that he had a right to give the evidence on oath. It is entirely the discretion of the accused person to state on oath or not by this amendment, a right has been given to the accused to record his statement on oath if he wants so. It is also pertinent to note that when once while recording the statement under section 342, Cr.P.C, the Court asks the accused whether he wants to adduce any evidence in defence, then the requirement of section 340(2), Cr.P.C. stands fulfilled. After this, it is entirely up to the accused person to state on oath or not.

32. It would also be necessary to mention here that the situation in Azad Jammu and Kashmir is different because at present there are two provisions which are applicable in Azad Jammu and Kashmir regarding statement of an accused person; the first one is section 340(2) of Cr.P.C. and the other is section 28 of the Islami Tazirati Qawanin Nifaz Act, 1974. Now the question emerges that out of these provisions which one will apply in Azad Jammu and Kashmir. It is well-settled principle of law that special law shall prevail on the general law. Section 340(2) is incorporated in the general law known as the Code of Criminal Procedure while section 28 is incorporated in Islami Tazirati Qawanin Nifaz Act which is a special law. As stated above, special law shall prevail on the general law. Under section 28 of the Islami Tazirati Qawanin Nifaz Act it is entirely the discretion of the Court to record the statement of accused person on oath or not. Where the Court feels that it is necessary to record the statement of accused on oath then the Court can pass an order and if the Court does not feel any necessity, then it may not record the statement on oath. Thus if at all the statement of accused person is not recorded under section 340(2), it will not make any difference.

33. Now the question emerges whether it is mandatory provision of law that the statement of accused should be recorded on oath and it is the duty of the Court to inform the accused about his this right? Assuming for the sake of arguments that instead of section 28 of the Islami Tazirati Qawanin Nifaz Act, section 340(2) shall apply in Azad Jammu and Kashmir even then if he is not asked by the Court whether he wants to record his statement on oath or he was not told or reminded about his this right it will not make any difference.

34. It would also be useful to mention here that a proposition arose before the Supreme Court of Pakistan in a case titled Mst. Ameer Khatun v. Faiz Ahmad and others PLD 1991 SC 787 that whether section 340(2) is a mandatory provision of law and if any omission has been committed by the Court regarding application of this provision, then what would be its effect. The Supreme Court in the said report has clearly held that it would not make any difference because the accused has such a right prior to this amendment. As such has been held by the Supreme Court at page 791 of aforesaid report in the following manner:-- "If in any case, there has been omission to inform the accused that he had been conferred such a right, it will not make much difference because even prior to this amendment he had a right whereunder he could in writing opt to make a statement on oath. The pre-existing right already being there, with the only difference that now a duty is cast on the Court to elicit the option from the accused, . in substance there is not much difference. Hence, no case of any prejudice, retrial or' re?examination of the accused in such cases arises unless the facts of the case make it necessary."

35. It is pertinent to note that through section 340(2), Cr.P.C., a right has been given to the accused that he can appear as a witness in disproof of the allegations, where he has not pleaded guilty but it does not mean that a duty has been cast upon the Court to inform the accused about his right. Where the accused was asked whether he intended to give evidence in defence then in a way he stands informed about his right to appear as a witness. It is up to him to decide whether he should, appear or not. As such was held by the Federal Shariat Court in a case titled Mst. Sultan Zari v. The State PLJ 1987 FSC 73 wherein it was observed as under:-- "

17. It was next argued by the learned counsel that the trial is bad for non-compliance of section 340(2), Cr.P.C. as amended by Ordinance XII of 1985 which came into force on 21-2-1985. According to subsection (2) above it is provided that an accused in criminal case who does not plead guilty, shall give evidence on oath in disproof of the charge and allegation against him. In this case, the accused was not asked by the trial Court to give evidence on oath. This argument also has no force because it was the right of the appellant to ask the Court that she intended to give evidence on oath under the amended section 340(2). The appellant was specifically asked by the trial Court whether she intended to produce any evidence in defence. At that stage she should have asserted her right of giving evidence on oath. She was represented by a counsel, hence, she must be fully aware of her right to give evidence on oath. It was not the duty of the Court to remind the appellant that she had a right to give evidence on oath in her defence. The duty of the Court ended after it asked from the accused whether she intends to give evidence in the defence. The Court had fully done its duty in this case." (Underlining is ours) In the aforesaid report it has been clearly laid down that it is not the duty of the Court to remind accused about his right. When it was asked to the accused as to whether he intended to give evidence in defence then the Court had fully done its duty in the case.

36. It is also pertinent to note that it has been held by the Peshawar High Court in a case titled Saeedullah alias Bacha v. The State 1988 PCr.LJ 19 that where in a statement of an accused recorded under section 342, Cr.PC, it has been asked from him as to whether he wanted to produce any evidence in defence, then he could record his statement under section 340, Cr.P.C., and it shall appear that the appellant was given a chance to record his statement on oath but he did not choose to do so. For having proper perception we would like to reproduce the finding recorded by the Court at page 26 of the report which is as under:-- "

7. From the examination of the appellant under section 342, Cr.P.C. we find that the learned trial. Judge had asked the appellant, when he was making a statement under section 342, Cr.P.C., would he produce defence and he had replied in the affirmative. Thereafter the appellant had produced three defence witnesses but he did not offer himself to appear as a witness on oath. If the appellant so wanted he could have recorded his statement on oath under section 340(2), Cr.P.C. It shall thus appear that the appellant was given ample opportunity by the learned trial Judge to make a statement on oath but he did not choose to do so. In the circumstances no illegality or irregularity has been committed by the learned trial Judge in not recording the statement of the appellant on oath." Same proposition also arose before Karachi High Court in a case titled Kando Khaskheli v. The State 1990 MLD 613 and it was held by the Court that the duty of the Court is only to ask the accused to enter upon his defence and then leave it to him to elect to appear as witness or not and no irregularity or illegality was committed by the trial Court in not recording his statement on oath. We would like to reproduce observation of the Court which was at page 620 of the report:-- "In this view of the observation we feel ourselves in agreement and hold that the infirmity pointed out by the learned counsel for the appellant is of no consequence. Reference may also be made to the case Saeedullah alias Bachha v. The State reported in 1988 Pakistan Criminal Law Journal 19 Peshawar in which a Division Bench of Peshawar High Court held that under section 340(2) Cr.P.C. the duty of the Court was only to ask the accused to enter upon his defence and then leave it to him to elect to appear as witness or not and no irregularity or illegality was committed by the trial Court in not recording his statement on oath."

37. In the instant case when the statement of appellant under section 342 Cr. P.C. was recorded then he was asked to enter upon the defence but he did not produce any evidence in defence. Even he did not state before the Court that he wants that his statement may be recorded on oath. Therefore even the requirements of section 340(2) have also been fulfilled.

38. As stated above, the case of murder of Mst. Farzana is proved against the respondent. Now the next important question arises about 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 sentence requires utmost care. The same must be weighed in the golden scale and should be properly balanced to cater rest of society from the commission of crime without being, unnecessary harsh. In the instant case the motive alleged by the complainant party was that Mst. Farzana was not having good relations with the mother, brother and wife of brother of her husband Muhammad Basharat and Muhammad Basharat was also having strained relations with her, therefore, he committed the murder. Now the question emerges whether the prosecution has proved the motive as alleged by the prosecution. In the instant case there was no evidence regarding the relations of mother of Muhammad Basharat, his brother, wife of brother with Mst. Farzana on the record rather the prosecution has not produced any strong and cogent evidence for establishing the motive. The motive alleged by the prosecution remained obscure and could not be positively proved. The 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 a case reported as Ali Hussain and another v. Mukhtar and 2 others 1983 SCMR

806. It is well settled principle of law that where the motive for the offence is shrouded in mystery then the extreme penalty of death is not warranted. The sentence of life imprisonment should be sufficient to meet the ends of justice. This view also finds support from a case reported as Muhammad Ali v. The State 1988 PCr.LJ

307. It is a celebrated principle of law that where the motive for the offence is either not proved or not satisfactorily established, it is a circumstance where the extreme penalty of death is usually avoided and lesser penalty of life imprisonment is awarded. This view finds support from the cases reported as The State v. Bahadur and another 1987 PCr.LJ 1689 and Ghulam Hussain v. The State 1987 PCr.LJ 1812.

39. It will be useful to mention here that in the instant case the accused was acquitted from the Shariat Court and he is at liberty after the pronouncement of judgment of the Shariat Court, therefore, he has developed an expectancy of life. It is well settled principle of law that no extreme penalty should be awarded to a person who has developed an expectancy of life. Therefore, it would not be safe and just to award the sentence of Qisas or death to the respondent. This view finds support from a case reported as Muhammad Nawab. v. Muhammad Sadiq and another (197,3 SCMR 300) wherein it has been provided as under:-- "We, accordingly, allow the appeal, set aside the order of the High Court, and restore the conviction of Muhammad Siddiq, respondent, under section 302, P.P.C. However, as the High Court gave the respondent expectation of life as far back as 23rd April 1968, we alter the sentence to transportation for life. In case the respondent has already been released he will be taken into custody to undergo the full term of the sentence awarded by this Court."

40. It is to be noted that section 544-A, Cr.P.C. contains that: "whenever a person is convicted of an offence in the, commission whereof the death of, or hurt, injury, or mental anguish or psychological damage to, any person is caused or damage to or loss or destruction of any property is caused, the Court shall, when convicting such person, unless for reason to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs of person whose death has been caused, such compensation as the Court may determine having regard to the circumstances of the case". Thus under section 544-A where a person has been murdered and the Court while awarding the sentence of life imprisonment or other could also order for paying compensation to the legal heirs of deceased, the Court has to award adequate compensation to heirs of deceased under section 544-A, Cr.P.C. and has to award sentence of imprisonment provided by law. Therefore, omission to award sentence of payment of compensation while awarding imprisonment for life under section 302 to the accused for causing murder was held to be a serious error. This view finds support from a case reported as Muhammad Asghar and others v. The State 1990 PCr.LJ 1646. This view further finds support from another case titled Asghar Beg v. The State 1996 Cr.LJ 230 wherein it was held as under:-- "

We, therefore, convert the sentence of death awarded to Asghar Beg appellant into life imprisonment. As the offence is being reduced from one of Qisas to Tazir, provisions of section 544-A Cr. P.C. will be operative. We, therefore, award a sum of Rs.5,00,000 as compensation which if recovered will be paid to the legal heirs of Adalat Beg deceased in default whereof the appellant shall undergo R.I. for six months."

41. Now the next question emerges whether section 544-A is a mandatory provision of law or directory. The wording of section 544-A is that where a person is convicted for an offence of commission of death, the Court while convicting such person shall also award the compensation to legal. heirs of deceased and where the Court did not want to award the compensation, then it has to record reasons for it as it has been clearly provided in subsection (1) of section 544-A. The same like proposition arose before the Supreme Court of Pakistan in a case titled Talib Hussain v. State 1995 SCMR 1776. It was held in the said report that under section 544-A the Court is bound while convicting a person for commission of death to award compensation to legal heirs of deceased unless reasons have not been recorded for not granting compensation. It has been held in the said authority as under:- "

18. As regards Criminal Appeal No.263 of 1993, it may be observed that a fine imposed along with sentence of death or imprisonment for life in a murder case under old section 302, P.P.C. or under amended section 308, P.P.C. cannot be equated with the amount of compensation payable to the legal heirs of the murdered deceased under section 544-A, Cr.P.C. It is true that the Court may order for payment of the amount of fine or part thereof to the legal heirs of the deceased but under section 544-A, Cr.P.C,. the Court is bound while convicting a person for the commission of death or hurt or injury etc. to award compensation to the legal heirs of the deceased or to the injured unless it records reasons in writing for not granting."

42. The Supreme Court of Pakistan in a case titled Muhammad Hanif v. Abdur Rehman and others 1977 SCMR 471 has held that the provision of section 544-A is mandatory. The Court is bound to award compensation unless for the reasons to be recorded it considers otherwise. It was observed at page 472 of the said report in the following manner:-- "The implication of section 544-A, Cr.P.C. was considered in State v. Rab Nawaz PLD 1974 SC 87 and it was held that this provision is `mandatory and casts a clear duty on the Court to award compensation unless for reasons to be recorded, it otherwise directs'. The reason is not for to seek, for, its object is to alleviate the suffering of the injured person and also to be an effective deterrent against violent crime. It was further emphasized that the amount of compensation though recoverable as fine, is not fine. In Mst. Razia Begum v. Hijrayat Ali and others PLD 1976 SC 44 this Court while imposing fine ordered that if recovered, the same shall be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. This course was adopted because the trial Court had unfortunately failed to notice this aspect of the case and the fine was imposed `to make up for the omission of the trial Court' as this provision is not only statutory but mandatory in its requirement. These observations apply with full force to the case under consideration. The learned Single Judge while imposing the fine had omitted to consider this provision and thus failed to discharge the statutory duty imposed by it. Nevertheless, under section 545(i)(b), Cr.P.C. the fine can be directed to be paid to any person as compensation for the injuries suffered by him. Having regard to the injuries caused to the appellant as a result of which he lost his sight and speech and is now disabled, we order that out of the fine of Rs.13,000, if recovered, Rs.10,000 shall be paid to him." The aforesaid view further finds support from a case reported as Mst. Razia Begun v. Hijrayat Ali PLD 1976 SC 44.

43. As far the contention raised by the learned counsel for the respondent is concerned that after recording the statement of accused-respondent under section 342, Cr.P.C. a stamp was affixed while it was enjoined upon the trial Court to record its note, it has no substance because the stamp contained the same wordings which were to be recorded by the trail Court in its note. Therefore, it shall make no difference. Thus the contention of the learned counsel for the respondent is without substance.

44. The crux of the above discussion is that this appeal is accepted and the judgment passed by the learned Judge of Shariat Court dated 15-6-2005 is hereby set aside. The sentence of rigorous life imprisonment along with compensation of Rs.5,00,000 (five lac) is awarded to respondent. After the realization of amount of compensation, the same shall be paid to legal heirs of deceased. The respondent is also awarded sentence of two years rigorous imprisonment under section 13 of the Arms Act. As the murder was committed cruelly by firing a bullet in the mouth of Mst. Farzana by the respondent, thus keeping in view the circumstances of the case, he is not entitled to benefit of section 382-B. He has to undergo the whole sentence of life imprisonment. In case of non-payment of compensation, he shall further undergo rigorous imprisonment for a period of six months. H.B.T./5/SC(AJ&K)??????????????????????????????????????????????????????????????????????????? Order accordingl