1997 P Cr (PLP)

MUHAMMAD YUNUS SURAKHVI, J.

Both the above-captioned appeals arise out of a common judgment recorded by the Shariat Court of Azad Jammu and Kashmir on December 31, 1994, whereby the conviction of Muhammad Ramzan was upheld but the sentence of Qisas awarded to him was converted into life imprisonment. Muhammad Ramzan, through his appeal, has challenged his conviction, whereas complainant Muhammad Zaman in his appeal has sought the enhancement of sentence. As both the appeals arise out of the same case and judgment therefore, both shall be disposed of through this single judgment.

2. The brief facts, forming the background of the present appeals, are that complainant Muhammad Zaman lodged a report at Police Station Kotli on 8th of March. 1991 at 5 a.m. stating therein that on March 7. 1991, his nephew Muhammad Hanif (now deceased), in order to celebrate the occasion of birth of his second son, had gone to Paraie Bazar for, bringing sweets and when he reached a place known as Mithy Jand. near Boys Primary School at 12-30 noon, Muhammad Shabbir son of Muhammad Sadiq, resident of Paraie, a co-villager met him. In the meantime accused-appellant Muhammad Ramzan son of Muhammad Hussain, resident of Paraie, armed with hatchet appeared on the scene and with an intention to cause murder inflicted the hatchet blow from its front side on the back side of the head of Muhammad Hanif. As a result of the aforesaid injury Muhammad Hanif fell down on the ground and accused appellant Muhammad Ramzan inflicted another blow of the hatchet from its blunt side on his left temporal region. On the noise made by Muhammad Shabbir, Muhammad Siddique, son of Shah Muhammad, a co-vill1ger, was attracted at the place of occurrence and on seeing him the accused-appellant made good his escape from the place of occurrence alongwith his hatchet. Muhammad Hussain the father of Muhammad Ramzan, accused, also arrived at the scene of occurrence who also ran away after seeing Muhammad Hanif in an injured condition. On the information furnished by Muhammad Siddique the complainant alongwith Muhammad Ilyas and one Shabbir son of Karim, were attracted at the place of occurrence. The complainant having found Muhammad Hanif in an injured condition, lifted him from the ground and took him to Paraie Dispensary. Since the condition of Muhammad Hanif was precarious so he was taken to Mirpur Hospital for his medical treatment wherein Muhammad Hanif succumbed to the injuries. The motive alleged for the crime is stated to be that two or three months prior to the occurrence Muhammad Hanif had cut certain trees from the land of Muhammad Bashir, the maternal-uncle of Muhammad Ramzan, upon which Muhammad Ramzan abused Muhammad Hanif who in return had beaten the accused-appellant. On this report lodged by the complainant, a case under section 5 of Enforcement of Islamic Penal Laws Act was registered against the appellant at Police Station Kotli. On the conclusion of the investigation by the said police, the appellant was forwarded to the District Criminal Court for facing the trial in the aforesaid offence. After the trial, the District Criminal Court found the appellant guilty of committing offence under section 5 of Islamic Penal Laws Act of 1974 and awarded him the sentence of Qisas. On the appeal, filed by the appellant, and the reference sent by the District Criminal Court, Kotli, the Shariat Court vide its impugned order converted the sentence of Qisas into life imprisonment and disposed of the reference accordingly. Hence these appeals. One by the appellant for setting aside his conviction and the other by the complainant for enhancement of sentence.

3. In all 26 witnesses were cited by the prosecution in the calendar of witnesses however, out of them eight witnesses, namely, Muhammad Siddique, Muhammad Shabbir, son of Abdul Karim, Muhammad Hussain, Muhammad Qayyum, Muhammad Najib, Dr. Khalid Jamil, Assistant Chemical Examiner and Raja Muhammad Latif Khan, D.S.P. were given up either being unnecessary or won-over. The prosecution in support of its case examined Muhammad Shabbir, Khadim Hussain and Baqar Ali P.Ws.2 to 4, as eye witnesses of the occurrence. Muhammad Zaman` P.W.1 appeared as a witness and proved F.I.R. Exh.P.A. This witness alongwith Muhammad Ilyas reached the place of occurrence soon after the incident. Nazim Hussain and Muhammad Yunus, P.Ws. 14 and 15 were examined as recovery witnesses of the hatchet recovered at the instance of accused-appellant and the marginal witnesses for recovery of blood-stained clay. Muhammad Saleem Khan, Sub-Inspector, was also examined as a witness effecting the recovery of hatchet from the accused -appellant and also conducted the investigation of the case. Muhammad Ashraf, Patwari, prepared the site plan and its explanations. Dr. Muhammad Bashir, Civil Medical Officer, D.H.Q. Hospital, Kotli, performed the post-mortem on the dead body of Muhammad Hanif. Muhammad Rafique Khan, A.S.-I., partly conducted the investigation of the case. Muhammad Malik and Muhammad Shafi P.Ws. 13 and 16 are the witnesses of recovery of clothes of deceased.

4. Arguing the case on behalf of appellant-convict, Mr. Abdul Majeed Mal lick, the learned counsel submitted with vehemence that the occurrence is alleged to have taken place on 7th of March, 1991, at 12-30 noon, whereas the F.I.R. was lodged on 8th of March, 1991, at 5 a.m. and the police station being located at a distance of 24 miles from the place of occurrence wherein the transport facility was easily available but despite that the report was lodged on the next day causing the delay of about 17 hours. The learned counsel submitted that in the F.I.R. only one eye-witness namely Muhammad Shabbir son of Muhammad Siddique P.W.2 is named but during the trial Khadim Hussain and Baqar Ali were introduced as eye-witnesses by the prosecution. The learned counsel contended that as the F.I.R. was lodged after a considerable delay so there was a sufficient time with the prosecution for introducing the abovesaid witnesses as eye-witnesses of the occurrence. It was pressed into service by the learned counsel that Khadim Hussain and Baqar Ali were introduced as eye witnesses after due deliberation by the prosecution as such their evidence was not worthy of any credence. The learned counsel also submitted that the complainant instead of reporting the matter immediately to the police took Muhammad Hanif firstly to Paraie Dispensary and then to Mirpur Hospital wherein he ultimately succumbed to the injuries. According to the learned counsel the first informant could have lodged the report even at Islamgarh (Akalgarh) Police Station or Mirpur Police Station, but in none of these Police Stations the matter was reported and ultimately on the following day the report was lodged at Kotli Police Station. The delay thus caused in lodging the report casts a serious doubt on the case of the prosecution for which no plausible explanation has been furnished. The learned counsel submitted that Muhammad Zaman, complainant, was informed about the occurrence by Muhammad Siddique as alleged in the F.I.R. but Muhammad Siddique was given up by the prosecution as being unnecessary witness so any information furnished by said Muhammad Siddique to the complainant was inadmissible in evidence unless and until Muhammad Siddique had himself appeared as a witness. The learned counsel also strenuously contended that according to the complainant the first blow on the head of the deceased Muhammad Hanif was inflicted by the accused-appellant from the sharp side of the hatchet and the second blow from the back side of hatchet but the post-mortem report totally contradicts the ocular version of the eye-witnesses as in the opinion of Dr. Muhammad Bashir, C.M.O. both the injuries are stated to have been caused by a blunt weapon. This aspect of the case, according to the learned counsel for the appellant, was not attended to by the trial Court as well as the Shariat Court in its true perspective. The precise contention of the learned counsel is that in case the medical evidence is in conflict with the ocular version of the eye-witnesses then in the safe administration of justice the eye-witnesses account should have been discarded. The learned counsel emphasised that the occurrence appears to be unseen keeping in view the facts and circumstances of the case and the eye-witnesses were introduced at a later stage after due deliberation. Alternatively it was also contended by the learned counsel for the appellant that assuming the eye-witnesses to be present at the scene of occurrence they appear to be chance witnesses as such the Court should be cautious and alert to scrutinize their evidence. Muhammad Shabbir and Baqar Ali were stated to be coming back from their school to their houses that in the way they allegedly saw the occurrence. Similarly P.W. Khadim Hussain was stated to be tending his goats at the relevant time and was attracted at the scene of occurrence. It was also contended by the learned counsel for the appellant that even if the prosecution version is accepted as correct, the appellant-accused could not have been awarded the extreme penalty of death. It is the case of the prosecution itself that the accused-appellant was not armed with any lethal weapon initially. Hatchet, the alleged weapon of offence, was in the hand of Khadim Hussain, P.W., from whom the appellant took it for just seeing the same and ultimately used it for infliction of injuries on the person of deceased Muhammad Hanif. The appellant was also not aware of the fact that Muhammad Hanif on the relevant day will pass through the alleged passage wherein the alleged occurrence took place. It was just by a chance that the appellant-accused after seeing the deceased Muhammad Hanif made up his mind to cause injuries at the spur of the moment. Looking the case from this angle, it transpires that the murder of deceased was not pre-planned or pre-arranged. The accused-appellant even did not waylay the deceased. It was further contended by the learned counsel that the accused -appellant at the time of commission of offence was a boy of about 18 years of age and the occurrence having taken place at the spur of moment the conviction of appellant by awarding him death penalty was not sustainable.

5. Controverting the arguments advanced by the learned counsel for the appellant, Ch. Muhammad Sharif Tariq, the learned counsel for the complainant, submitted that appellant committed a gruesome murder of a young man of 22 years of age who was going towards Bazar for bringing sweet in order to celebrate the birth of his second son. The appellant, without any provocation from the side of the victim, or any altercation, committed a heinous offence of murder and ruined the career of the whole family. The case of the prosecution, according to the learned counsel, is based on the testimony of outright straightforward and trustworthy evidence of the eye-witnesses. There are no material contradictions in the statements of eye-witnesses. These witnesses, according to the learned counsel, were natural witnesses out of them two witnesses namely Muhammad Shabbir and Baqar Ali were school students at the relevant time who used to go back to their houses from the said path in a normal routine. Even the evidence of Khadim Hussain who is stated to be tending his goats at the relevant time is natural and confidence inspiring. The evidence of Khadim Hussain achieves great significance in the sense that the weapon of offence was taken by the appellant from this witness and was ultimately used in the commission of the offence. The learned counsel submitted that these eye witnesses do not fall within the category of chance witnesses as contended by the learned counsel for the appellant. On the point of delay in lodging the F.I.R. the learned counsel submitted that a positive explanation is available in the F.I.R. itself and the statement of the complainant Muhammad Zaman recorded in the trial Court that due to the precarious condition of the victim, he was initially taken to Paraie Dispensary for getting the first aid but when his condition further deteriorated he was moved to Mirpur Hospital where the better facilities and qualified doctors were available. It was quite natural on the part of the complainant who happens to be the uncle of victim to have tried his best first to save the life of victim rather than initiating legal proceedings by getting a case registered against the culprit. The fact that the complainant could lodge a report at Islamgarh during his way to Mirpur or even at Mirpur is based on assumptions, which course was not adopted by the complainant and he thought it fit to save the life of the victim by making his best endeavours. When the victim of offence breathed his last and the complainant became helpless in saving his life he reported the matter at Kotli Police Station. The mere fact that eye witnesses Khadim Hussain and Baqar Ali were not named in the F.I.R. is no ground for discarding their evidence especially so when first informant had no first hand knowledge of the occurrence. Had the intention of complainant been to enrope the appellant in a false case he would have introduced some close relatives of the deceased having any motive to falsely implicate the appellant but this was not the position in the instant case. The learned counsel also maintained that the evidence of eye-witnesses was sufficiently corroborated by the medical evidence and the evidence of P. Ws. who reached the scene of occurrence soon after the occurrence. The recovery of hatchet according to the learned counsel stands fully proved at the instance of the accused-appellant as Sardar Muhammad Saleem Khan, S.H.O., the Investigating Officer, who made the recovery stated in unequivocal terms that the recovery was made on the pointation of the appellant. The defence having been provided an opportunity to cross-examine the witnesses did not choose to do so, meaning thereby, that the recovery of hatchet, the weapon of offence, stands fully admitted. On the point of sentence, the learned counsel maintained that Shariat Court, without any justifiable reason, has reduced the sentence of Qisas to that of imprisonment for life although there were no extenuating circumstances to convert the sentence into life imprisonment. The learned counsel submitted that if a murder case stands proved then the normal sentence to be awarded to the culprit is the death sentence unless some circumstances are brought on record to show that the accused was entitled to the leniency in the matter of sentence.

6. Ch. Muhammad Mushtaq, the learned Additional Advocate-General, fully supported and endorsed the arguments advanced by Ch. Muhammad Sharif Tariq, the learned counsel for the complainant.

7. We have given our passionate thought to the points canvassed by the learned counsel for the parties and perused the record made available with utmost care. In the very first instance on the point of F.I.R. having been lodged after a delay of about 17 hours, it may be stated that delay per se is no ground for throwing out the case of the prosecution. If from the perusal of the record it transpires that a reasonable explanation is furnished by the prosecution regarding the delay then it assumes a very little importance. In the instant case we find that a reasonable explanation is available in the F.I.R. itself and the statement of the complainant in the Court that when he reached the place of occurrence soon after the occurrence the story was narrated to him by Muhammad Siddique and Khadim Hussain. The complainant after reaching the place of occurrence saw Muhammad Hanif, the victim of offence, in an injured condition who was not in a position to move about. He lifted the victim and took him to Paraie Dispensary for the purpose of providing him the first medical aid wherein the victim was given the first medical aid but the complainant was told that the condition of the victim had deteriorated so it would be better to take him to Mirpur Hospital for getting his medical treatment where the better medical facilities and Wetter qualified doctors were available. In an attempt to save the life of the victim, the complainant decided to move the victim to Mirpur Hospital for getting his condition improved by medical treatment. The victim was duly attended at Mirpur by a doctor and provided medical treatment but despite the best efforts for saving his life, the victim succumbed to the injuries and could not be survived. Resultantly the victim breathed his last in the Mirpur Hospital and as such the report was lodged on 8th of March, 1991, at 5 a.m. at Kotli Police Station. So in our view, the explanation for delay in lodging the F.I.R. appears to be plausible and reasonable. Besides the delay in the lodging of F.I.R. cannot be applied like a rule of limitation as is applied in civil cases. In the instant case there is no such dispute with regard to the identity of the accused as the occurrence took place in a broad daylight having been seen by the villagers who were well known to each other and to the accused-appellant. The contention raised by the learned counsel for the appellant that the complainant could have lodged a report at Islamgarh during his way to Mirpur or at Mirpur Police Station is merely a hypothesis based on assumptions and hence is of no substance.

8. The alleged occurrence of murder was witnessed by three eye witnesses, namely, Muhammad Shabbir, Baqar Ali and Khadim Hussain. Out of them Muhammad Shabbir is duly named in the F.I.R. The rest of the two eye witnesses although have not been mentioned in the F.I.R. but still they appeared as such and supported the case of the prosecution. It is stated by Muhammad Shabbir P.W. in his statement before the Court that at the relevant time he and Baqar Ali were studying in Paraie High School and on the fateful day of incident they were going to their houses at about 12 O'clock that they met Muhammad Hanif in the path where the occurrence took place and this used to be their normal route for going towards their houses. On the day of incident it was Thursday, therefore, the school was closed earlier and they were coming back towards their houses when Muhammad Hanif met them who enquired as to why they had come earlier from the school upon which they replied that on account of Thursday the school was closed earlier. They also asked Muhammad Hanif as to where he was going who told them that he was going to Paraie Bazar for bringing sweet to celebrate the occasion of birth of his second son. These three persons were busy in talking that all of a sudden accused Muhammad Ramzan appeared on the scene with a hatchet in his hand and inflicted a blow on the back side of the head of Muhammad Hanif, who fell down and started bleeding. Muhammad Ramzan, appellant, repeated another blow on the victim on his left parital region and then made good his escape alongwith his hatchet from the scene of occurrence. On their hue and cry one Muhammad Siddique was attracted at the place of occurrence and after him Muhammad Hussain, the father of accused arrived at the scene and on seeing the victim in an injured condition ran away. P.W. Muhammad Siddique then asked Khadim Hussain to inform about the occurrence to the relatives of Muhammad Hanif. In the meantime Shabbir and Baqar left for their houses. Exactly to the similar effect is the statement of Baqar Ali who stated that at the relevant time both he and Shabbir were students and studying in the Paraie School. He was student of 6th Class whereas Shabbir was in 9th Class at the relevant time and further narrated the details of the prosecution story as stated by Muhammad Shabbir. Khadim Hussain, P.W. on the fateful day, was tending his goats near the path where the occurrence took place. This witness deposed in the Court that on the relevant day Shabbir and Baqar Ali were going towards their houses from their school who met him a little while thereafter Ramzan-appellant arrived who shook hand with him and demanded the hatchet belonging to him just to see it and after getting the hatchet moved forward, the witness followed him and demanded back his hatchet but the appellant replied that he would just be giving it to him. In the meantime appellant inflicted a hatchet blow on the back side of the head of Muhammad Hanif who fell down on the ground and, the second blow was also inflicted by the appellant on the parital region of Muhammad Hanif. On the hue and cry of all the eye-witnesses Muhammad Siddique and Muhammad Hussain, the father of accused, were attracted at the place of occurrence. Muhammad Siddique asked the witness to inform the relatives of Muhammad Hanif about the occurrence. During the course of evidence P.W. Khadim Hussain also identified his hatchet used in the commission of offence, which was shown to him in the open Court. 9: The above portions of the statements of the eye-witnesses have been mentioned just to show that all the eye-witnesses have clearly narrated the material particulars of the prosecution story. The occurrence took place in a broad daylight in presence of these witnesses who are co-villagers of the appellant and the victim. P.W. Shabbir has been named in the F.I.R. whereas Baqar Ali and Khadim Hussain have not been named as such in the F.I.R. lodged by Muhammad Zaman, complainant. But the mere fact that P. Ws. Baqar Ali and Khadim Hussain have not been named in the F.I.R. does not discredit their testimony, which is otherwise natural and confidence-inspiring. As the complainant himself had not the first hand knowledge of the occurrence, who was informed of the incident by one Muhammad Siddique and he reached on the spot after the occurrence so he was not in a position to name all the eye witnesses in the F.I.R. It may also be pointed out that all the eye-witnesses were subjected to a considerable cross-examination by the learned counsel for the defence but nothing positive or favourable to the accused-appellant has been brought on record. A note may also be taken of another significant aspect that the presence of the eye-witnesses at the place of occurrence was not disputed or challenged by the defence. The cross-examination of these witnesses spreads over many pages but not a single suggestion was made to the witnesses that they did not see the occurrence or that they were planted as eye-witnesses at a later stage to enrope or implicate the accused-appellant in a false case. In this view of the matter when the eye-witnesses have stood the test of cross-examination their evidence is quite natural, trustworthy and straightforward, we have no difficulty in arriving at the conclusion that these witnesses did see the occurrence. There also seems to be no earthly reason that why these two innocent students, namely, Baqar Ali and Muhammad Shabbir should have substituted or enroped the accused in a false case, particularly when they have no relationship with the deceased or any animosity with the accused and even we do not find any suggestion to this effect by the defence. We are also not impressed by the argument that the eye-witnesses are chance witnesses and that at the time of appreciation of evidence the Court should insist for some corroboration. In the first instance Shabbir and Baqar Ali do not appear to be the chance witnesses. It was their daily routine to go from their school to their houses on the same path or the route wherein the occurrence took place. Similarly Khadim Hussain who was tending his goats at the relevant time, near the scene of occurrence, was the man having a hatchet in his hand. It was the hatchet of this man which was taken by the appellant for the purpose of commission of offence and this witness not only narrated the incident being fully in line with Baqar Ali and Muhammad Shabbir but also identified the hatchet shown to him in the Court during his evidence which was used for the commission of the offence by the appellant. These witnesses are independent witnesses having no bias against the accused- appellant. It is only in those cases where the witnesses are found to be interested and inimical in the sense that they have a motive to implicate the accused persons that the Court should look for some supporting circumstances with a view to eliminating the chances of false implication especially in cases where there is a background of blood feuds between the parties or a chain reaction of retaliatory murders. Corroboration does not necessarily mean the evidence of an independent witness but anything in the circumstances, which tends to satisfy the Court that such interested witnesses have spoken the truth. The idea behind seeking extraneous support is that no innocent person is implicated. But in the instant case no such eventuality is present.

10. However, in our view, if some corroboration of the eye-witnesses, at all, is insisted that is available in the shape of evidence of Muhammad Zaman, complainant, and P.W. Muhammad Ilyas. These witnesses arrived at the scene of occurrence soon after the occurrence and they saw the victim in an injured condition at the scene of occurrence and took the victim to Paraie Dispensary for getting the first medical aid. It may also be pointed out that evidence of Muhammad Zaman, complainant, was ruled out of consideration as being inadmissible by the Shariat Court on the ground that under Article 71 of Qanun- e-Shahadat, which deals with the oral evidence, his evidence was not admissible. The learned Judge in the Shariat Court consumed much time in the impugned judgment while dealing with the aspect of oral evidence. In this regard the learned Judge referred to different books written by various authors and expressed the view that, since complainant Muhammad Zaman did not see the occurrence himself, the first information report lodged by him was hearsay and therefore, not admissible in evidence. In this connection the learned Judge relied on Article 71 of Qanun-e-Shahdat which is reproduced as follows:-- "

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 must 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

With due deference to the Shariat Court, it is pointed out that Article 71 applies to oral evidence which means the evidence which is recorded by the Court and does not apply to first information report lodged with the police. It may be pointed out that Muhammad Zaman simply lodged the first information report at Police Station Kotli. Muhammad Zaman P.W. was not having the first hand knowledge of the incident. He got .the information from Muhammad Siddique and Khadim Hussain P. Ws. regarding the occurrence. It is clear from the provisions of section 154, Criminal Procedure Code that any person can lodge a report regarding the commission of a cognizable offence in order to set the police agency into motion. The same was done by P.W. Muhammad Zaman. On his information, which was based on a second hand knowledge the case was registered and the investigation Was started. It: 'has been stated by the complainant in the F.I.R. that the incident was narrated to him by P.W. Muhammad Siddique but when he appeared as a Court witness it was deposed by him that occurrence was narrated to him both by Muhammad Siddique and Khadim Hussain. May be his statement was not admissible as being hearsay, to the extent it related to the narration of prosecution version by Muhammad Siddique as he was never produced by the prosecution. But his other parts of the statement, for instance, the narration of incident to him by Khadim Hussain P.W., the fact that he saw the victim in an injured condition on the scene of occurrence and that he lodged the F.I.R. Exh. P.A. disclosing the commission of a cognizable offence, expressing the view that murder of Muhammad Hanif was committed by Muhammad Ramzan and the fact of his taking the injured person initially to Paraie Dispensary and subsequently to Mirpur Hospital is not inadmissible under the law. We, therefore, set aside this part of the finding recorded by the Shariat Court that the evidence of Muhammad Zaman falls within the category of oral evidence and as such is not admissible.

11. Another strong corroborative piece of evidence available on the file is the post-mortem report of Dr. Muhammad Bashir, C.M.O., Kotli, who conducted the autopsy of the deceased. On examination of the dead body he found the following injuries:-- "(1) A lacerated wound 2 c.m. x .5 c.m. x 0.5 c.m. on left side of skull on temporal region; (2) A bruise mane an the left side of forehead; and (3) A bruise on the right shoulder." In the opinion of doctor, the cause of death was cardio pulmonary arrest due to intercramial haemorrhage from the fractured left perital bone caused by blunt weapon. It was contended by the learned counsel for the appellant that the dimensions mentioned in column of the wounds by the doctor do not fit in with the dimensions of the wounds shown in the column of scalp, skull and vertebrae which is to the following effect:-- "A lacerated wound on scalp on temporal region. Left temporal bone was fractured there was fracture of left perital bone, extending up to the right side of vertix on left side left temporal bone 7 c.m. x u c.m. was depressed fractured. Membrane raptured brain cavity was full of blood. Brain matter of left lobe injured and mixed with blood." From the above observations in the aforesaid column, it was contended by the learned counsel for the appellant that the dimension of wounds shown in this column is not compatible with the dimension of wounds mentioned in column of wounds bruises etc. We agree with Ch. Muhammad Sharif Tariq, the learned counsel for the complainant that the column. of wounds bruises etc. shown in the post-mortem report deals with the external appearing condition of the body as the same is shown under the heading "External Appearance" whereas the column of dimension of injuries shown in scalp and skull etc. appears to be with regard to the position wounds after the wounds are opened at the time of post-mortem. Thus we see no force in the argument advanced from the side of accused -appellant. When doctor appeared as a witness, his explanation was not sought for to this aspect of the matter, therefore, the argument advanced by the learned counsel for the appellant is hereby repelled and we hold that the medical evidence is fully in line with the ocular count of the eye-witnesses.

12. As regards the recovery of the hatchet, the trial Court as well as the Shariat Court have reached the conclusion that the recovery of the crime weapon was effected at the instance of the accused-appellant and used it as corroborative piece of evidence. In our view the recovery of crime weapon alleged to have been effected at the instance of accused-appellant cannot be used as a corroboration against the accused for the simple reason that the evidence of both the marginal witnesses of recovery, namely, Nazim Hussain and Muhammad Yunus is self-contradictory and as such inconsistent. According to Nazim Hussain P.W. the crime weapon was handed over to the police by Muhammad Hussain, the father of the accused, whereas it was stated by Muhammad Yunus, the other marginal witness, that the crime weapon was handed over to police by Muhammad Ramzan, accused. Even with regard to the fact of custody of accused person with the police at the time of recovery is also self-contradictory. The evidence of the marginal witnesses has not been relied upon even by the Shariat Court. However, the Shariat Court placed reliance on the statement of Sardar Muhammad Saleem Khan, S.H.O., the Investigating Officer, who made the recovery on the ground that he was nct cross-examined by the defence so his evidence shall be deemed to have been admitted. There are certain reported cases wherein on the sole statement of Investigating Officer the recovery effected by him was held to be a valid piece of corroborative evidence Without entering into the question as to whether the sole statement of the Investigating Officer is a sufficient piece of corroborative evidence or not in our view an important factor has escaped the notice of the trial Court as well as the Shariat Court. None of the marginal witnesses of recovery nor the Investigating Officer has stated that the hatchet, the alleged weapon of offence, was stained with blood, not to speak of human blood. In these circumstances it is hardly a relevant piece of evidence ion be taken into consideration to connect the accused-appellant with the recovery. Thus, this piece of evidence is ruled out of consideration. However, the mere fact that the recovery effected from the accused does not connect him is no valid ground to detract him from the other incriminating evidence connecting him with the commission of offence.

13. Even the evidence pertaining to motive as alleged by the prosecution is very weak and the sole statement made by Muhammad Latif, P.W., is not confidence-inspiring. This piece of evidence too is thus discarded.

14. As discussed in the earlier part of the judgment, we have reached the conclusion that the evidence of eye-witnesses is natural, trustworthy and rings true, and there seems to be no reason whatsoever to disbelieve them. The ocular version -is fully corroborated by the evidence of Muhammad Ilyas and Muhammad Zaman, P.Ws., who reached the scene of occurrence soon after the incident. The medical evidence is a further strong corroborative piece of evidence. It, therefore, follows that the prosecution has established its case beyond a reasonable shadow of doubt and brought the guilt home to the accused. The trial Court as well as the Shariat Court have believed the prosecution witnesses and although reappraisal of evidence is not a function of this Court. We have examined the evidence with great care and find that the conclusions reached by the trial Court and the Shariat Court on the factual aspects are unassailable.

15. The trial Court awarded the sentence of Qisas to the appellant whereas the Shariat Court on account of youth of culprit converted the sentence of Qisas into life imprisonment. In our view the sentence of Qisas could not have been awarded to the appellant because of the non-availability and lack of required standard of evidence as visualized under the Islamic Penal Laws Enforcement Act. Standard' of evidence provided under the Islamic Penal Laws Act is two male Muslim adult witnesses which is lacking in the case in hand. P.W. Baqar Ali, the eye-witness, was admittedly of the age of sixteen years whereas Muhammad Shabbir was of the age of 17 years on 21-11-1992 and 20-10-1991 respectively on the days their statements were recorded by the trial Court. The occurrence is alleged to have taken place on 7th of March, 1991. So on the day of occurrence both of them were, below the age of 18 years, which is the normal and general age of majority. In the Islamic Penal Laws Enforcement Act no age of majority is fixed yet in the Act known as Offences Against Property (Enforcement of Hudood) Act and the Act known as Offence of Zina (Enforcement of Hudood) Act, 1985, the adult has been defined a person who has attained, being a male, the age of 18 years or being a female, the age of 16 years, or has attained puberty. Similarly in the Majority Act, 1875, the age of Majority provided is 18 years. The spirit of the Legislature in both the Islamic Enactments and the Majority Act appears to be the same and the consensus is that a person, being a male, attains majority at the age of 18 years. As said earlier, the standard of evidence provided in the Islamic Penal Laws Act, is not available in the instant case but this aspect of the matter failed to attract the attention of the trial Court. If an offence of murder stands proved but two adult male witnesses are not available then section 24 of Islamic Penal Laws Act has to be reverted to as is provided in section 3 of the said Act. We have already held that the prosecution has established the guilt of the accused beyond any reasonable shadow of doubt. The appellant is thus found guilty of murder of Muhammad Hanif, deceased, and we propose to sentence him in light of sections 3 and 24 mentioned above.

16. The accused-appellant, when got his statement recorded tinder section 342, Criminal Procedure Code, before the trial Court `on 26-5-1991, stated his age to be 18/20 years, meaning thereby., that his age on the above date was ranging between 18 to 20 years. The learned Shariat Court took it for granted that the age of the accused-appellant on the day of commission of offence was 18 years, suffice it to say that the occurrence took place on 7-3-1991. It could not have been reasonably inferred that the age of appellant on the relevant day of occurrence was 18 years. The reasonable inference in our view would be that the appellant was of 19 years of age on the day of occurrence. Besides, in our view mere youth is no ground for awarding lesser sentence, unless the circumstances and facts of the case so justify or warrant. The accused-appellant not only caused hatchet blow on the head of victim but repeated the same by causing another blow and that too on the head of the victim, the most vulnerable part of the body. Another circumstance that agitates our mind is the fact that the victim of offence on the relevant day was also only 22 years old. The motive alleged by the prosecution was not such so as to warrant a cold-blooded murder of deceased on account of revenge for petty;, incident of beating. The victim was chased and there seems to have been no provocation or altercation from his side so as to show some justification for the offence of murder. Thus there is no mitigating circumstance in the case The result is that the normal sentence, death penalty has to be imposed as was rightly done by the trial Court.

17. We therefore, by accepting the appeal filed by the complainant, restore the order of the trial Court with the modification that sentence of Qisas is substituted by the sentence of death under section 3 of the Islamic Penal Laws Enforcement Act, 1974. The appeal filed by Muhammad Ramzan stands dismissed. N.H.Q./155/SC(AJ&K) Sentence enhanced.