2007 P Cr (PLP)

IFTIKHAR HUSSAIN BUTT, J.

Since both the appeals filed by the convict-appellants and the complainant along with a reference made by the Additional District Criminal Court Hattian Bala arise out of the same incident and the judgment, therefore, these have been consolidated and will be disposed of by this single judgment. The charge against the convict-appellants is that Shams-ur-Rehman son of complainant and his nephew Abdul Basic were present in Kaser Kot Bazaar on 4-6-2006 at 7-45 p.m. Imran and Imtiaz sons of Muhammad Shafi Qureshi, Muhammad Aslam and Muhammad Akram sons of Kh. Ghulam Ahmed arrived in the Bazaar. They altercated with Abdul Basit and Shams-ur-Rehman. Imran, accused gave blows of "Chhuri" to Abdul Basit which hit him upon his chest with the intention to murder him, who got seriously injured. Meanwhile, Imran and Aslam inflicted injuries with "Chhuri" to Shams-ur-Rehman which hit him upon his chest with the intention to kill him. Shams-ur-Rehman was taken to MDS but he succumbed to the injuries. The accused persons in furtherance of their common intention murdered Shams-ur-Rehman. The occurrence was witnessed by Abdul Qadir, Tahir, Zahoor and Basharat. The motive behind the occurrence has been stated to be a dispute of tape-recorder which was taken away by Imran in absence of Abdul Basit. On this report a case under sections 302, 324, 337 and 34, A.P.C. was registered by Raja Muhammad Ishaq S.H.O. (P.W.13) on 5-6-2006 at 2-00 a.m. On 4-6-2006, after arriving at the place of occurrence, Raja Muhammad Ishaq S.H.O. (P.W.13) prepared an inquest report Exh.P.G. and injury forms of Shams-ur-Rehman, deceased Exh.P.F. and Abdul Basic injured (P.W,2) Exh.P.E. On the same day, he sought opinion of the doctor about the death of deceased vide its letter Exh.P.E., as both the documents injury form of Abdul Basit and letter of S.H.O. have been exhibited as Exh.P.E., therefore, during the course of this judgment, the letter of S.H.O. is being marked as Exh.P.E./1. On 6-6-2006 accused Imran led to the recovery of knife Exh.P.1 which was secured by Raja Muhammad Ishaq S.-I. Police vide recovery memo. Exh.P.C. attested by Abdul Qadir (P.W.3.) and Zahoor Ahmed (P.W.4). He also prepared site plan Exh.P.J. wherefrom knife Exh.P.1 was recovered. On the same day, the knife Exh.P.1 was examined by Dr. Ishtiaq Ahmed Mughal (P.W.8) vide its endorsement Exh.P.L. On 9-6-2006, the site plan Exh.P.l was prepared by Muhammad Yaqoob Patwari (P.W.7). After the post-mortem on 5-6-2006, the blood-stained clothing of the deceased trousers P.2, shirt P.3 and string P.5 were taken into possession by Hidayat Ullah Head Constable (P.W.9) on 17-6-2006 vide recovery memo. Exh.P.D. attested by Basharat (P.W.5) and Tahir (P.W.6). It was reported by Chemical Examiner vide its report dated 26-7-2006 that the clothing of the deceased and the knife were stained with blood. The post-mortem of the dead body of Shams-ur-Rehman deceased was performed on 5-6-2006 by Dr. Ishtiaq Ahmed Mughal (P.W.8) Civil Medical Officer R.H.C. Leepa vide post-mortem report Exh.P.K. He noticed the following injuries on the dead body of deceased caused by a sharp knife:-- "Dimension of the first wound.

Located in the fifth intercostals space just below the nipple (on left side). Length (2 c.m. with sharp-edge). Instrument sharp knife. Probe has been passed. The knife cut the intercostals muscle in 5th intercostals space. The depth of the stab wound is 9-10 c.m. Dimensional finding of 2nd wound. Located at the anterior axillary fold (left side) in 7th intercostals space horizontal and length is about 3 and half c.m. with sharp-edge. The probe has not passed. The knife did not pierce the intercostals muscle. It is just superficial wound and depth of the wound is 1 and half c.m. Instrument; sharp knife." After completion of the investigation, the accused were sent up to face trial. The accused during the examination under section 265-D, Cr.P.C. pleaded not guilty and claimed the trial. In order to prove its case, the prosecution produced Abdul Khaliq (P.W.1), Abdul Basit (P.W.2), Abdul Qadir (P.W.3), Zahoor Ahmed (P.W.4), Basharat (P.W.5), Tahir (P.W.6), Muhammad Yaqoob Patwari (P.W.7), Dr. Ishtiaq Ahmed Mughal (P.W.8), Hidayat Ullah Head Constable Police (P.W.9), Ali Asghar Kayani (P.W.10) and Raja Muhammad Ishaq S.-I. (P.W.13). The prosecution after tendering in evidence the report of Chemical Examiner closed its case. The accused in their statements recorded under section 342, Cr.P.C. pleaded their innocence. The accused did not appear as witness under section 340(2), Cr.P.C. After conclusion of the trial, Imran, appellant was convicted and sentenced to death under section 302, A.P.C. He was also awarded sentence of three years' rigorous imprisonment under sections 324 and 337 D, A.P.C. He was further directed to pay "Arsh" Rs.10,

000. The appellants Imtiaz, Muhammad Aslam and Muhammad Akram were convicted and sentenced to two years' simple imprisonment each under sections 324 and 337-D, A.P.C. They were also directed to pay "Arsh" Rs.5,000 each and in case of default of payment of the said amount, the appellants shall be kept in jail till its realization with benefit of section 382-B, Cr.P.C. Being aggrieved, the convict-appellants. lodged an appeal for setting aside their conviction and sentence whereas a reference has also been made by Additional District Criminal Court, Hattian Bala for confirmation of the death sentence awarded to Imran, as required by section 338-D, A.P.C. On the other hand, Abdul Khaliq, complainant, and Abdul Basit injured (P.W.2) also filed an appeal seeking enhancement of payment of "Arsh" to the extent of Imran, convict and payment of "Arsh" and the sentence awarded to Imtiaz, Muhammad Aslam and Muhammad Akram, convict-appellants. Both the appeals and the reference mentioned above are subject-matter of this judgment. Tahir Aziz Khan, Advocate, appearing on behalf of the convict-appellants zealously argued that a false case has been registered against the accused on account of enmity. The learned counsel also contended that F.I.R. was registered after a deliberate delay of seven hours, therefore, it smacks of fabrication and false implication. The learned counsel further maintained that all the prosecution witnesses are interested and closely related to the complainant party; therefore, their evidence is not reliable. The learned counsel pointed out that the accused were stated to be four in number while the prosecution witnesses were five in number at the time of occurrence but none of the prosecution witnesses tried to rescue the deceased who was closely related to them or to cause any harm to the accused party which shows that the prosecution witnesses were not available at the time of occurrence. According to the learned counsel Abdul Basit (P.W.2) was taken to the hospital soon after the occurrence but he was medically examined on 7-6-2006 which casts serious doubt upon the prosecution story. The learned counsel further maintained that in the column 12 of inquest report Exh.P.G., the weapon of the offence has been stated to be a "Chhuri" whereas a knife was allegedly shown to be recovered at the instance of Imran accused. The learned counsel agitated that blood-stained clay was not recovered from the place of occurrence. The learned counsel pressed into service the submission that medical evidence also does not corroborate the prosecution story because the time of death has not been recorded in the post-mortem report and at the time of post-mortem four cuts were shown present on the shirt whereas according to the recovery memo. of the clothing of deceased two cuts were found upon his shirt. The learned counsel laid great stress upon the point that Abdul Khaliq (P.W.1) has made numerous improvements in his statement recorded before the trial Court and stated that at the time of occurrence accused Imtiaz, Aslam and Akram were giving blows of fits and kicks to the deceased whereas he did not mention this fact in his statement Exh.D.A. recorded under section 161, Cr.P.C. Similarly, Zahoor Ahmad (P.W.4) has not mentioned about the presence of Abdul Khaliq and Abdul Qadir P.Ws. at the time of occurrence. Furthermore, according to the statement of Zahoor Ahmad, Imran inflicted one injury to the deceased which hit him upon his chest whereas according to the post-mortem report, the deceased sustained two injuries. The learned counsel pointed out that P.Ws. have not alleged any overt act against Imtiaz, Aslam and Akram accused persons; therefore, the trial Court has also committed an illegality while passing order of conviction and sentence to their extent. The learned counsel vehemently argued that the disputed tape recorded and the broken lock were not confiscated; therefore, alleged motive could not be proved. The learned counsel further maintained that it has been admitted on the part of prosecution that at the time of occurrence 10 to 12 impartial persons were present at the place of occurrence but none of them was produced in support of prosecution version which proves that fact that the accused are innocent and if the impartial witnesses would have appeared, they would not have supported the prosecution tale. The learned counsel finally submitted that the prosecution story is full of infirmities and material contradictions but the trial Court wrongly relied upon the prosecution evidence; therefore, the impugned judgment is not sustainable and the convict-appellants are entitled to be acquitted. In support of his contentions, the learned counsel cited the following authorities:-- (1) 1985 PCr.LJ 1951, (2) PLD 1993 Lah. 195, (3) PLD 1999 Lah. 56, (4) 2000 YLR 1542, (5) 2000 YLR 2601, (6) 2001 YLR 1628, (7) 2004 SCMR 1185, (8) 2006 SCMR 1846, (9) 2006 SCMR 1886, (10) 2006 MLD 1253, (11) 2006 PCr.LJ 1870. Controverting the arguments raised by the learned counsel for the convict-appellants, Mushtaq Ahmad Janjua, the learned counsel for the complainant, submitted that the trial Court fell in grave error by issuing direction to the extent of Imran convict-appellant to pay "Arsh" Rs.10,000 and to the other accused persons to pay "Arsh" Rs.5,000 each, whereas according to the rate fixed by the Government, the total amount of Diyat is Rs.7,65,750 and its one third comes to Rs.2,55,

250. Similarly, the trial Court has awarded meagre sentence to the other accused persons under section 34, A.P.C. The learned counsel pointed out that in light of explanation sought from Imran convict-appellant under section 342, Cr.P.C., he has admitted his presence at the place of occurrence, hearing noise and launching an attack upon his shop and his fleeing away from the shop. In this manner, according to the learned counsel, the time and place of occurrence and the presence of Imran convict-appellant have been admitted by him but Imran convict did not lodge any report with the police station. He did not opt to appear as witness. He also did not produce any defence evidence. The learned counsel agitated that the main part of the prosecution story was not challenged during the cross-examination upon Abdul Khaliq (P.W.1). Furthermore, the presence of P.Ws. and the evidence about the motive was also not challenged during his cross-examination. It was further admitted by the defence during the cross-examination that Shams-ur-Rehman sustained injuries at the place of occurrence. The injuries of Abdul Basit (P.W.2) were also admitted. The learned counsel maintained that during the statement of Abdul Qadir (P.W.3) it was again admitted by the defence that Shams-ur-Rehman deceased sustained injuries of knife at the place of occurrence and Abdul Basit received an abrasion of nail. Similarly, during the statement of Zahoor Ahmad (P.W.4), the infliction of an injury by knife to Shams-ur-Rehman has been admitted by the defence. During the cross-examination upon Basharat (P.W.5) neither the main story of the prosecution nor the recovery of the knife was challenged. Furthermore, the deposition of Tahir about the main story of prosecution was also not challenged in cross-examination; therefore, the prosecution case has been amply proved through natural and cogent evidence. The learned counsel further contended that sufficient corroboratory evidence in shape of post-mortem report, medical examination report of Abdul Basit (P.W.2) along with site plan, the recovery of knife and recovery of blood-stained clothing have been produced by the prosecution. The P.Ws. have been found "Adil" during purgation. The motive, the removal of tape recorder after breaking lock of the room of Abdul Basit (P.W.2) has also been proved by the prosecution. The learned counsel finally submitted that the co-accused Imtiaz, Aslam and Akram have fully facilitated the commission of murder; therefore, Imran convict-appellant may be directed to deposit Rs.2,55,250 as "Arsh" one-third of Diyat and the sentence of co-accused may also be enhanced and they may also be directed to deposit Rs.2,55,250 each as "Arsh". In support of the arguments reliance was placed upon the following case-law:- (1) 1992 SCR 294, (2) 1993 PCr.LJ 914, (3) 2000 YLR 302, (4) 1999 YLR 1879 (5) 2001 PCr.LJ 524 and PLJ 2005 Sh.C. (AJ&K)

96. Sayed Tayyab Gillani, Assistant Advocate-General appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the complainant. He further argued that Raja Muhammad Ishaq Khan, S.-I. (P.W.13) has explained that due to an advertence the date 4-6-2006 was inserted on injury form Exh.P.E. because the occurrence took place between the night of 4th and 5th June, 2006; therefore, the preparation of injury form on 4-6-2006 instead of 5-6-2006 does not make the prosecution story suspicious. The learned State counsel pointed out that the statements of prosecution witnesses in the manner that the occurrence continued upto 15 to 20 minutes do not give any benefit to the defence because in present case two occurrences took place one after another. Firstly, Abdul Basit was injured by stabbing and later on Shams-ur-Rehman was murdered. The learned State counsel further maintained that it has been proved during the cross-examination of Zahoor Ahmad (P.W.4) that it was raining on the night of occurrence; therefore, the blood was not available and on this account, the blood-stained earth could not be taken into possession. The learned State counsel laid great stress upon the suggestion put to Abdul Khaliq (P.W.1) wherein it was suggested that Shams-ur-Rehman sustained injuries by Abdul Qadir, which proves the fact that the injuries of Shams-ur-Rehman at the place of occurrence were admitted by the defence. In this manner, the injuries of Abdul Basit have also been admitted by the defence. The learned counsel for the State maintained that the prosecution witnesses do not nurse any grudge or enmity against the accused persons; therefore, the question of false implication does not arise. ? I have given my due consideration to the arguments raised at Bar on behalf of the parties in the light of material available on record along with the case-law by keeping defence. version in juxtaposition. I have also gone through the impugned judgment with care. After having a detailed scrutiny of the entire evidence, I am of the view that prosecution has proved its case against Imran convict by producing cogent, clear and convincing evidence. The important feature of the case is an admission on the part of Imran convict-appellant when an explanation of the prosecution story was sought by him, as required by section 342, Cr.P.C. The relevant question and the answer are reproduced below: ? I am cognizant of the fact that the above mentioned answer is by itself not sufficient to pass an order of conviction and sentence but it proves the fact that at the time of occurrence, the convict-appellant was present. It is further admitted that the occurrence took place at the same time as alleged by the prosecution and the accused fled away from the scene of occurrence. When the above statement is perused coupled with the eye-witnesses' account along with sufficient corroboratory and confirmatory evidence, which will be discussed in detail later on, the prosecution's tale stands proved beyond any shadow of reasonable doubt. At this stage, it will also be relevant to point out that the accused did not lodge any report with the police about launching attack upon him. He did not choose to appear as witness before the trial Court. He also did not produce any evidence in defence. The style of cross-examination and suggestions put to the accused also give strong support to the prosecution case. For instance, the statement of Abdul Khaliq (P.W.1) about the main story of prosecution wherein he stated that soon after his arrival he found an injury on the right side of the chest of Abdul Basit (P. W'.2) who told him that he was stabbed by Imran. His further deposition that he witnessed the fact that Imran inflicted injury with "Chhuri" upon Shams-ur-Rehman, was not at all challenged during the cross-examination. The time and date of occurrence were also admitted by the defence through its suggestions. Similarly, no question was asked about the motive of the occurrence. It was further admitted by the defence that Shams-ur-Rehman, deceased and Abdul Basit (P.W.2) sustained injuries during the occurrence. In this manner, the presence of Abdul Basit (P.W.2) at the time of occurrence stands admitted by the defence. Abdul Basit (P.W.2), an injured witness, has fully supported the prosecution version who stated that co-accused launched an attack upon him, pushed him into the shop and thereafter Imran gave blow of "Chhuri" which hit him on the right side of his chest. However, he has not witnessed other part of occurrence during which Shams-ur-Rehman was murdered because he himself was severely injured. Abdul Qadir (P.W.3) testified that on breaking the lock of the room of Abdul Basit (P.W.2) and taking away his tape recorder, an altercation took place between the parties. The accused party pushed Abdul Basit into the shop whereat Imran accused gave blow of knife to Abdul Basit which hit him on the right side of his chest. After a little while he witnessed that accused Aslam, Imtiaz and Akram were beating Shams-ur-Rehman, when Imran gave a blow of "Chhuri" to Shams-ur-Rehman, deceased, which hit him upon the left side of his chest, who fell down. A suggestion put to Abdul Qadir (P.W.3) also shows that the defence has admitted the fact that Shams-ur-Rehman sustained injuries of a knife at the place of occurrence. The relevant portion of the suggestion reads as under:-- ? Similarly, Basharat (P.W.5) and Tahir Asad (P.W.6) fully support the prosecution version but their statements about the main story of prosecution were not challenged in the cross-examination; therefore, it will be deemed that the defence has admitted the case of prosecution. It is by now an enriched principle of criminal jurisprudence that if any part of the statement of a witness is not challenged in the cross-examination, it will be considered to have been admitted by the other party. In this regard, reference can be made to the following cases:-- (1) PLD 1995 SC (AJ&K) 41, (2) 1996 PCr.LJ Sh.C. (AJ&K) 1076, (3) 1997 MLD 2013, (4) 1999 CLC 1358 (5) 2004 YLR 1663. A careful perusal of above mentioned evidence of eye-witnesses shows that it is cogent, clear, convincing and coherent which is by itself sufficient for recording conviction against Imran accused without any further corroboration. The eye-witnesses have been found "Adil" in purgation, which make their statement more reliable and worthy of credence. In this respect reliance can be placed upon the case reported as Zahir Hussain Shah v. Shahnawaz and 3 others and The State v. Shahnawaz and 2 others 2000 SCR 123, wherein the following principle was enunciated at page 39 of the report:-- "It, therefore, follows that where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence alone without any further corroboration but in the present case ocular evidence gets further support from ample circumstantial evidence." Likewise, in the instant case sufficient corroboratory and confirmatory evidence has been produced which fully supports the ocular version. Dr. Ishtiaq Ahmad Mughal (P.W.8), who conducted the autopsy of the dead body of deceased, found injury on the same part of the deceased's body whereat it has been alleged by the eye-witnesses. According to the post-mortem, the deceased sustained first injury in the 5th intercostal space just below the nipple on the left side. The second injury was located at the anterior axillary fold left side in 7th intercostal space. Both injuries have been found to be inflicted by a sharp knife. The above mentioned medical evidence fully testifies the eye-witnesses' account that the deceased was done to death by stabbing knife in his chest. As stated earlier, the time and place of occurrence, the presence of convict Imran, Abdul Basit (P.W.2) and Shams-ur-Rehman, deceased have been admitted by the defence. The site plan further suggests that the deceased was done to death at the place testified by the eye-witnesses. The medical examination report of Abdul Basit (P.W.2) Exh.P.E. is also in nature of corroboratory evidence. At this stage, I advert to an objection raised by the learned counsel for the defence that according to the prosecution, the F.I.R. was lodged on 5-6-2006 but the injury form of Abdul Basit was prepared on 4-6-2006, which makes the prosecution case doubtful. The grievance of the learned counsel for the defence have been explained by Raja Muhammad Ishaq S.-I. (P.W.13) at page 52 of the trial Court file that the occurrence took place between the night of 4-6-2006 and 5-6-2006 and he directed Hidayat Ullah Head Constable Police (P.W.9) to prepare injury form of Abdul Basit (P.W.2) on 5-6-2006 but due to an advertence the date of preparation of injury form was incorporated as 4-6-2005. It needs to be emphasized that the defence did not cross-examine Hidayat Ullah Head Constable Police (P.W.9) about the aforesaid fact. Furthermore, any carelessness or negligence in investigation cannot be regarded sufficient to demolish the prosecution case, if otherwise, the offence against accused person stands proved in the light of evidence on record. My aforesaid view finds support from a case reported as Syed Kabir Hussain Shah v. State PLD 1984 SC (AJ&K)

82. The blood-stained clothing of the deceased were also taken into possession and two signs of cut were found on the chest portion of the shirt of deceased but the statement of Basharat (P.W.5) was not challenged in cross-examination about the aforesaid recovery memo. I therefore, it will also be deemed to be admitted by the defence. The factum of above mentioned recovery was further supported by another marginal witness Tahir Asad (P.W.6), who has categorically stated that the blood-stained clothings were taken into possession in presence of Basharat (P.W.5). The" aforesaid recovery was confirmed by Hidayat Ullah Head Constable Police (P.W.9). On this account, the aforesaid recovery also supports the ocular version. The inquest report Exh.P.G. further substantiates the factum of recovery. The learned counsel for the defence has seriously criticized the recovery of weapon of offence, knife. It is argued that in the F.I.R. it was alleged that Abdul Basit injured (P.W.2) and deceased were attacked upon by a "Chhuri" but a knife was recovered at the instance of accused. No doubt, the word "Chhuri" appears in F.I.R. but a careful perusal of recovery memo. Exh.P.C. shows that Imran accused led himself to the recovery of knife. The aforesaid recovery was attested by Abdul Qadir (P.W.3). Zahoor Ahmad (P.W.4) and Raja Muhammad Ishaq Khan S.-I. Police (P.W.13). A deep scrutiny of the deposition of Abdul Qadir shows that a knife P.1 was recovered at the instance of accused and not a "Chhuri". It will be useful to mention here that during the cross-examination the defence has given two suggestions to Abdul Qadir wherein it has been suggested that he wanted to stab knife to somebody else, which hit Shams-ur-Rehman, deceased and in the other suggestion it was suggested that he (Abdul Qadir) has provided knife for recovery. In this view of the matter, the defence has itself admitted that a knife was used as a weapon of offence and not a "Chhuri".?????? Zahoor Ahmad (P.W.4), who happens to be an independent witness, has also supported the factum of recovery of knife P.1. Like Abdul Qadir, it was again suggested to Zahoor Ahmad (P.W.4) by defence that the knife P.1 was taken from the shop of Abdul Qadir for recovery purpose. It is necessary to mention that the defence did not put any question to Raja Muhammad Ishaq Khan, S.-I. Police (P.W.13), the Investigating Officer, as to whether a "Chhuri" or a knife was recovered at the instance of accused, rather it was suggested to him that a knife, the weapon of offence, was provided by Abdul Qadir from his shop for the purpose of recovery. Thus, it is clearly admitted by the defence that the weapon of offence was a knife and not a "Chhuri". So far as the different versions of the prosecution witnesses about infliction of "Chhuri" or knife are concerned, are not of much significance because (firstly) it has already been admitted by the defence that Shams-ur-Rehman, deceased, got injured by sustaining blows of knife at the place of occurrence and (secondly) the distance between the place of occurrence and the place wherefrom the P.Ws. witnessed the occurrence is.55 feet; therefore, it is quite possible that the P.Ws. could not be able to differentiate between a "Chhuri" or knife at the time of occurrence. The learned counsel strenuously contended that F.I.R. was lodged after seven hours of the occurrence; therefore, it creates suspicion and doubt upon the prosecution case. Although the Courts have always viewed First Information Report with grave suspicion when there has been unexplained delay in giving it but the benefit of any delay in filing is available to the accused where the identity of the accused is doubtful or the time is consumed in consultation or to manipulate a story for false implication of some particular individuals but in the instant case the accused cannot derive any benefit on account of delay because the identity of the accused is not doubtful. Coming to the instant case, the occurrence took place on 4-6-2006 at 7-45 p.m. and F.I.R. was lodged on 5-6-2006 at 2-00 a.m., therefore, the F.I.R. was delayed for about six hours. Keeping in view the particular facts and circumstances of the case, afore-stated delay does not cast any doubt upon prosecution version because the injured was taken to military hospital where he succumbed to the injuries. Usually civilians are not allowed to make frequent visits to an Army Hospital. After the death of his son, the F.I.R. was written by complainant, father, and was lodged with the police station; therefore, delay in lodging F.I.R. cannot be applied like the rule of limitation, as it is applied in civil cases especially when the identity of an accused is not doubtful and it is also admitted by the defence. My aforesaid view finds support from the following authorities: (1) 1992 SCR 294, (2) 1993 PCr.LJ 914, (3) 1997 PCr.LJ 376, (4) 2000 SCR

123. I also do not find substance in this plea of the learned counsel for the defence that the eye-witnesses are closely related to the complainant, therefore, their evidence may be ruled out of the consideration. First of all, all the P.Ws. are not closely related to complainant, Abdul Khaliq (P.W.1). Amongst them, Zahoor Ahmad (P.W.4) and Basharat (P.W.5), the eye-witnesses, are not at all related to the complainant or the deceased. Both the above mentioned P.Ws. are independent witnesses and their evidence to the extent of Imran convict-appellant is not only clear and cogent but also convincing and reliable. Apart from that, as stated earlier, the defence has admitted the presence of Imran convict-appellant, Abdul Basit (P.W.2) and Shams-ur-Rehman deceased on the spot; therefore, in the light of peculiar facts and surrounding circumstances of the instant case, the related eye-witnesses cannot be termed as interested witnesses and on the ground of mere relationship their evidence cannot be discarded. Furthermore, the eye-witnesses do not nurse any grudge or rancor against the accused party; therefore, there is no chance of false implication of Imran convict-appellant especially when his identity has been fully established by the prosecution. A host of case-law owns. this view but I have decided to quote only the following cases:-- (1) PLD 1979 SC 23, (2) PLD 1983 SC (AJ&K) 98, 211; (3) PLD 1988 SC (AJ&K) 134, (4) 1992 SCR 249, 294, (5) 2001 PCr.LJ 524, (6) 2001 SCMR 1111, (7) 2002 SCMR

99. The learned counsel laid great stress upon the point that at the time of occurrence many independent witnesses were available but none of them was produced by the prosecution. (Firstly), the defence failed to point out the names of particular witnesses who were not produced by the prosecution. (Secondly), as stated earlier, two independent eye-witnesses Zahoor Ahmad (P.W.4) and Basharat (P.W.5) fully support the prosecution version even otherwise the non-production of some witnesses cannot demolish the prosecution story because the accused-appellants never opted to examine them in defence. This view stands fortified from a case reported as Abdul Aziz v. Muhammad Lal and 2 others 1999 YLR 1755, wherein it was opined by the apex Court that the prosecution is not duty bound to produce each and every witness cited in the calendar of challan. It depends upon the will of prosecution to produce such witnesses whom it deems necessary to prove the guilt against the accused. But in the present case, all of the witnesses cited in the calendar of challan were produced before the trial Court and none of them was given up by the prosecution. An identical view as taken in Zarbahadar's case 1978 SCMR 136 and in Muhammad Rafique's case 1999 SCMR 1208. The learned counsel argued with vehemence that the blood-stained earth was not taken into possession; therefore, the place of occurrence cannot be identified. It has been clearly held in earlier part of the judgment that the place of occurrence has been fully admitted by the defence, during Imran's examination under section 342, Cr.P.C. but also through the suggestions put to the eye-witnesses. Even otherwise, non-recovery of blood-stained earth from the spot cannot be held fatal to the prosecution, as the prosecution witnesses have stated in unequivocal manner that at the night of occurrence due to heavy rain, the blood-stained earth could not be collected. In this regard, reference may be made to 2003 YLR 2572. The next question which requires consideration is about an objection raised by the learned counsel for the defence that the motive has not been proved. The prosecution has taken the motive that Imran accused broke the lock of his room and took away his tape recorder without his permission and when Abdul Basit inquired from him as to why he broke the lock of his room and took away the tape recorder without his permission, an altercation took place between them, and Imran gave a blow of knife to Abdul Basit P.W., which hit him on his chest. Thereafter, when Shams-ur-Rehman inquired from Imran accused as to why he inflicted an injury of knife to Abdul Basit (P.W.2), he also inflicted injuries with knife to Shams-ur-Rehman, deceased, which hit him upon the left side of his chest. The aforementioned motive has been fully established by the eye-witness; therefore, non-confiscation of the broken lock or tape recorder does not give any benefit to the defence. Even otherwise, if the case is primarily based on ocular evidence, it is not necessary to prove motive because the motive is not always material and sometimes murders are committed without motive 2003 YLR

806. As far as the case of other accused-appellants Imtiaz, Muhammad Aslam and Muhammad Akram is concerned, is almost different from the case of Imran, convict-appellant. It will be appropriate to point out that no specific role has been ascribed to Imtiaz and Muhammad Akram, accused-appellants in the F.I.R. Exh.P.A. Amongst the co-accused only Muhammad Aslam has been alleged to give blows of "Chhuri" to Shams-ur-Rehman, deceased, which hit him upon his chest. After the investigation, only allegations of catching hold of Abdul Basit and Shams-ur-Rehman, deceased, have been ascribed to all the accused-appellants and an overt act of inflicting injury by "Chhuri" was not attributed to Muhammad Aslam, accused but at the time of framing charge under section 265-D, Cr.P.C. an allegation of giving blows of fists and kicks was also added against the above mentioned accused-appellants contrary to the challan report filed under section 173, Cr.P.C. Abdul Khaliq, complainant, has not witnessed the occurrence to the extent of Abdul Basit (P.W.2). However, he has testified that Shams-ur-Rehman deceased was attacked and other accused were giving him blows of fists and kicks. He has also confirmed his statement Exh.D.A. recorded under section 161, Cr.P.C. as correct but he refrained to depose before the trial Court about the allegation of giving blows of "Chhuri" by Muhammad Aslam, accused. He did not state the fact of giving blows of fists and kicks to Shams-ur-Rehman, deceased during his examination under section 161, Cr.P.C. Exh.D.A. Abdul Basit (P.W.2) stated that accused persons launched an attack upon him and while pushing they took him into his shop. Abdul Qadir (P.W.3) testified that accused-appellants by giving blows of fists pushed Abdul Basit into his shop and Imran inflicted an injury of knife to him which hit him upon his chest, thereafter, they launched an attack upon Shams-ur-Rehman and caught hold of him when Imran inflicted injury of "Chhuri" to the deceased which hit the deceased upon his left chest. Zahoor Ahmad (P.W.4) has also deposed in the like manner but Tahir Asad (P.W.6) deposed that the accused-appellants caught hold of Abdul Basit and Muhammad Aslam asked Imran to launch attack upon Abdul Basit. He further deposed that when Imran inflicted injury to the deceased with knife, the other accused were pushing the deceased. Basharat (P.W.5) stated that the accused-appellants caught hold of Basit, launched an attack upon him and took him into his shop where Aslam asked Imran to give a blow of knife to Abdul Basin but he did not mention any overt act of the remaining accused-appellants about the occurrence relating to Shams-ur-Rehman, deceased. A detailed scrutiny of the above stated evidence along with the prosecution version put forward in F.I.R. and the charge-sheet under 'section 173, Cr.P.C. makes the case of prosecution suspicious and doubtful to the extent of accused-appellants. A perusal of medical examination report of Abdul Basil (P.W.2) and the post-mortem report Exh.P.K. do not corroborate the allegations levelled against the accused-appellants because none of the injuries or abrasions or signs of fists and kicks are present upon the person of Abdul Basin or Shams-ur-Rehman, deceased. Dr. Ishtiaq Ahmad Mughal (P.W.8) has also not supported the above mentioned prosecution tale to the extent of accused-appellants. The prosecution version being inconsistent and self-contradictory to the extent accused-appellants (except Imran convict) cannot be relied upon. It is an admitted principle of law that the benefit of slightest doubt arising in the case goes in favour of the accused. It will also be fruitful to mention that the prosecution has also failed to prove the existence of any common intention or pre-arranged plan; therefore, the trial Court has fell in grave error to pass an order of conviction and sentence by applying section 34, A.P.C. against them. Therefore, they are entitled to be acquitted of the charge. Section 34, A.P.C. can only be applied in the cases where it is difficult to make a distinction between the individual accused persons or to prove exactly what action was taken by each accused. Therefore, in the instant case no pre-concert or preplan or preparation of co-accused in furtherance of common intention could be proved beyond any shadow of reasonable doubt. In support of the view, the case titled Abdul Khaliq v. The State 2006 SCR 1886 can be cited. I am also aware of the fact that evidence of the prosecution witnesses was believed regarding convict-appellant, Imran but it has been disbelieved regarding other convict-appellant, Imtiaz, Muhammad Aslam and Muhammad Akram. It is an enriched principle of criminal jurisprudence that a criminal Court has to sift the grain of truth from the chaff of falsehood. On this account, the statements of prosecution witnesses can be relied upon against some accused by rejecting against others. The following authorities will be sufficient to explain this view: (1) 2000 SCR 123 and (2) 2001 PCr.LJ

524. So far as the case-law referred to by the learned counsel for the convict-appellants is concerned, does not need any details analytical survey because of distinguishable facts and dictum of apex Court of AJK referred to above. In the light of above discussion, the statements of eye-witnesses are clear, concrete, convincing and fully supported by sufficient corroboratory and confirmatory evidence. Some variations in preparation of inquest report or injury sheet etc. are not fatal to the prosecution story. (2001 PCr.LJ 524). The case of the prosecution has been fully established and the prosecution has brought guilt home to the convict-appellant, Imran beyond any shadow of doubt and he has been found guilty of the offences of inflicting injury to Abdul Basit and of murder of Shams-ur-Rehman, deceased, as recorded by the trial Court. The eye-witnesses were found "Adil" in purgation. I also do not find any mitigating circumstances for lesser punishment to Imran, accused, because death sentence is a normal penalty in a murder which shall meet the ends of justice. The prosecution has not lodged any appeal for imposing sentence of Qisas instead of death and the appeal has been lodged only to the extent of enhancement of the payment of "Arsh". The aforementioned contention appears to be well-founded and requires serious consideration. Therefore, it was incumbent upon the trial Court to order for the payment of "Arsh" to one-third of the total amount of Diyat; thus, it will be in the interest of justice to enhance the payment of "Arsh" upto one-third of the total amount of Diyat. The analysis of the above discussion is that I partly accept the appeal and set aside the impugned judgment dated 26-8-2006 to the extent of Imtiaz, Muhammad Aslam and Muhammad Akram, accused and acquit them of the charge by giving them the benefit of doubt. I also partly accept the counter-appeal lodged by Abdul Khaliq complainant and Abdul Basil (P.W.2) and order that the convict-appellant shall be liable to pay "Arsh" Rs.2,55,250 one-third of the total amount of Diyat Rs.7,65,750 (as fixed in the light of Government Notification No.LD/LEGIS/171-90/2006, dated 26-6-2006. The "Arsh" amount, after realization, shall be paid to Abdul Basit injured P.W. However, the sentence of death under section 302(b), A.P.C. is confirmed and sentence of 3 years rigorous imprisonment vide judgment dated 26-8-2006 is maintained. Therefore, the impugned judgment is modified to this extent only. The appeals and reference are disposed of in the manner indicated above. H.B.T./19/Sh.C.(AJ&K)????????????????????????????????????????????????????????? Appeal partly accepted.