2007 P Cr (PLP)

IFTIKHAR HUSSAIN BUTT, J.

As the above titled appeals and reference arise out of the same incident and judgment; therefore, these have been consolidated and will be disposed of by this judgment. Brief facts forming the background of instant case are that Muhammad Ishaq Khan, complainant, filed a written report on 25-2-2004 at 7-30 p.m. alleging therein that 10/12 years prior his sister Mst. Maroof Jan was married to Mahmood son of Mir Akbar and she also gave birth to two children. At the time of marriage, Mir Akbar had given half portion of house and land measuring two Kanals to Mst. Maroof Jan. The relations between the spouses became strained and Mahmood divorced the complainant's sister 4/5 years before the occurrence. As the house was in the name of Mst. Maroof Jan; therefore, she was living with her children in the said house whereas Mahmood started living with his sister. On account of aforesaid grudge, Mahmood has been threatening Mst. Maroof Jan. On 25-2-2004, at 6-30 p.m. Mahmood armed with sharp-edged Chhuri entered into the house of complainant's sister and gave blows of Chhuri which hit her belly and other parts of her body with the intention to do away with her life. When complainant's son Wajid tried to rescue Mst. Maroof Jan, Mahmood also gave him blows of Chhuri which hit him upon his head and abdomen. The complainant tried to save both of them but Mahmood struck at his head with a stick and complainant also got injured. In the meantime, on hearing hue and cry, Younis son of Nawazish Ali, Nasir son of Ishaq, Majid son of Bashir and some other persons reached at the spot and witnessed the occurrence. His sister Mst. Maroof Jan succumbed to the injuries on her way to C.M.H. Rawalakot. Mahmood accused has committed the murder with the aid and abetment of Azhar alias Tikka. The complainant further stated that 3/4 days prior to the occurrence both the accused persons launched an attack upon Muhammad Younis, the brother of complainant and threatened to kill him. On this report, a case under sections 302, 452, 324, 337 and 109, A.P.C. was registered by Faiz-ur-Rehman, S.-I. Police (P.W.26). Faiz-ur-Rehman, S.-I. Police (P.W.26) after registration of the case went to the spot prepared an inquest report Exh.P.U. and injury sheet of the deceased Exh.P.T. On the same day he also prepared injury statements of Muhammad Ishaq (P.W.1) Exh.P.J., Wajid Ishaq (P.W.6) Exh.P.L. and Mahmood Ahmad accused Exh.D.D. In the meantime, Nazir Hussain Abbasi Inspector Police (P.W,24) went to C.M.H. and sent the dead body for post-mortem examination. He arrested Mahmood Ahmad and Azhar alias Tikka on the same day. He also secured medical examination reports of Muhammad Ishaq Exh.P.K., Wajid Ishaq Exh.P.M. and Mahmood Ahmad accused Exh.D.E. from Dr. Zubair Sarwar (P. W.18). After the post-mortem on 26-2-2004, the .blood-stained clothing of deceased a shirt P.2, a trousers P.3, a vest P.4 and an underwear P.5 were taken into possession by Mukhtar Ahmad Head Constable police vide recovery memo. Exh.P.D. in the presence of Muhammad Younis (P.W.2) and Muhammad Fayyaz (P.W.15). The blood-stained clothing of Wajid Ishaq injured (P.W.6) sweater P.8, shirt P.9 and trousers along with string P.10 were taken into possession by Nazir Hussain Abbasi Inspector Police (P. W.24) on 2-3-2004 vide recovery memo. Exh.P.F. and blood-stained clothing of Muhammad Ishaq injured (P.W.1) shirt P.6 and sweater P.7 on 3-3-2004 vide recovery memo. Exh.P.E. in presence of Muhammad Younis (P.W.2) and Muhammad Sadiq (P.W.14). On 2-3-2004 Mahmood Ahmad accused produced dagger P.11 which was secured vide recovery memo. Exh.P.H. attested by Muhammad Nisar (P.W.7) and Yasir Ishaq (P.W.9). On the same day, a Danda P.A./1 was taken into possession at instance of Mahmood accused vide recovery memo. Exh.P.C. in the presence of Muhammad Younis (P.W.2) and Muhammad Sadiq (P.W.14). He got site plan Exh.P.O. and keynotes Exh.P.P. prepared from Gul Nawaz Patwari (P.W.16) and also took into possession copy of mutation deed Exh.P.Q. and copy of Khasra Girdawari Exh.P.R. Prosecution in support of its case produced twenty witnesses in all. Dr. Zubair Sarwar (P.W.18), on 25-2-2004 examined Muhammad Ishaq (P.W.1) and found the following injuries:-- (1) Lacerated wound 2 x 1 c.m. in right temporal region with active bleeding. (2) Swelling of nose. The nature of above injuries is simple caused by blunt weapon. On the same day, he examined Wajid Ishaq (P.W.6) and found the following injuries:- (1) Lacerated wound at lateral aspect of scalp about 1 x 1/2 c.m. with active bleeding. (2) Deep wound in left flank penetrating upto abdominal cavity. The nature of above stated injuries is dangerous caused by sharp-edged weapon. On the same day he examined Mahmood Ahmad accused and found the following injuries:-- (1) Lacerated wound at head parietal region left with fresh blood oozing 5 c.m. to 1 c.m. (2) Another lacerated wound at head close to No.1 4 c.m. to 1 c.m. with fresh blood oozing. (3) Superficial wound between web of thumb and index finger of left hand. (4) Deep wound on left middle finger with fresh bleeding 1 c.m. to 1 c.m. (5) Bruise on left forearm (Dorsal side) in middle 0.5 c.m. The nature of above mentioned injuries is simple caused by a blunt weapon. Lady Dr. Anjum Kayani (P.W.17) on 26-2-2004 conducted the post-mortem on the dead body of Mst. Maroof Jan and found the following injuries:-- (1) A skin cut flap 3-4 c.m. with 1 c.m. deep in right forearm on flexor surface with blood coming out and clotted leaving blood vessels intact only cutting capillaries. (2) Stab wound in epigastric area which is 2-3 c.m. with sharp-edged weapon with clear cut edges and is piercing the interior abdominal wall of peritoneum with blood in abdominal cavity. It was reported by Chemical Examiner vide its report dated 15-3-2004 that the trousers, shirt, vest and Chhuri were found stained with blood. At the conclusion of the prosecution evidence, the convict-appellant and acquitted accused were examined as required by section 342, Cr.P.C. They refuted the prosecution allegations and pleaded innocence. After completion of the trial, Additional District Criminal Court Poonch Rawalakot convicted Mahmood Ahmad under section 302, A.P.C. and sentenced him to death as Qisas with a fine of Rs.50,000 to be paid to heirs of the deceased or in default to undergo further S.I. for six months. He was further convicted under sections 324, 337 and 452, A.P.C. and sentenced to 10 years' R.I. with a fine of Rs.25,000 or in default S.I. for three months. The other accused Azhar alias Tikka was acquitted of the charge by the trial Court vide its judgment dated 5-4-2005. The convict Mahmood Ahmad has challenged his conviction and sentence by way of this appeal. Muhammad Ishaq complainant has also filed an appeal against Azhar alias Tikka for awarding him sentence under law whereas the trial Court has made a reference for confirmation of death sentence. The judgment shall dispose of above captioned appeals and the reference. Sardar Iftikhar Ahmad, the learned counsel for the convict-appellant, strenuously agued that the injuries of the accused were not only suppressed in F.I.R. but also by the eye-witnesses; therefore, the ocular testimony is not reliable. The learned counsel further contended that the prosecution has withheld the real facts of the occurrence and in fact the complainant party launched an attack upon the accused who acted in self-defence, thus, no reliance can be placed upon the prosecution evidence. The learned counsel pointed out that the accused was provoked by the deceased, asking him to fetch woods and ask his sister to cook food for his father who committed the murder without any preplanning or premeditation. The learned counsel maintained that due to the dispute of family affairs, the complainant and his family was annoyed with the accused and they wanted to do away with his life and if the accused had not acted in self-defence they could have easily murdered him; therefore, the trial Court miserably failed to appreciate the prosecution and defence version in its true perspective and awarded the extreme penalty of the death which cannot be upheld. The learned counsel pressed into service the submission that a chance was not given to the accused to cross-examine Muhammad Sadiq (P.W.14) and Muhammad Fayyaz (P.W.15), the witnesses for recoveries of blood-stained clothing and stick. Similarly, the accused was not afforded adequate opportunity to produce his defence evidence and the trial Court acted hurriedly to dispose of the case in an illegal fashion. The learned counsel laid great stress upon the point that the prosecution witnesses are closely related to the deceased and the complainant. On this account, their evidence is not worthy of any credence. The learned counsel for defence finally submitted that the prosecution miserably failed to prove its case; therefore, the accused may be acquitted of the charge. In support of the arguments, the learned counsel relied upon the following case-law:-- (1) PLD 1994 Lah. 193, (2) 1994 SCMR 1928 (3) 2003 SCMR

459. Controverting the arguments raised by the learned counsel for the accused, Sardar Ejaz Ahmad Khan, the learned counsel for the complainant submitted that in the light of suggestions put to P.Ws. and explanation of the accused during his examination under section 342, Cr.P.C. the time and place of occurrence, the presence of accused, the presence of deceased and the presence of eye-witnesses is admitted by the defence. According to him, the only dispute remains about the manner of occurrence and in such-like cases the burden of proof shifts upon the defence to prove that the accused acted in self-defence. The learned counsel pointed out that accused has taken three types of self-contradictory pleas (first) of self-defence, (second) of his acting under sudden and grave provocation and the (third) that due to stress and mental agony he committed the occurrence but the accused failed to prove any of the above mentioned pleas. The learned counsel argued that F.I.R. was lodged without any delay, a specific role was ascribed to the accused and the eye-witnesses were nominated. The learned counsel agitated that the accused was also medically examined; therefore, the prosecution has not suppressed the injuries of the accused. The learned counsel further maintained that keeping in view the injuries of the accused which are simple in nature and caused by blunt weapon, the accused admittedly exceeded the right of self-defence who not only killed his wife but also seriously injured his brother-in-law Muhammad Ishaq (P.W.1) and his son Wajid Ishaq (P.W.6). The learned counsel stressed upon the point that besides the injured witness, mentioned above, Waleed (P.W.5), the son of -the accused also appeared and fully supported the prosecution story. The learned counsel argued with vehemence that it is also admitted on the part of defence that at the time of marriage land measuring 2 Kanals and half portion of the house was given to the deceased. It was further admitted that the accused had divorced the deceased since long. It is also admitted by the defence that the accused threatened Muhammad Younis (P.W.2) and also warned the deceased to give up the possession of the land and the house mentioned above 2/4 days prior to the occurrence. The learned counsel strenuously argued that before the occurrence the deceased preferred two applications to S.P. Poonch and D.M. Poonch about the threatening attitude of accused. The learned counsel also submitted that the evidence of P.Ws. cannot be brushed aside on the basis of relationship because no enmity against the accused could be established by the defence. The learned counsel further pointed out that the defence failed to cross-examine the recovery witnesses about the recovery of blood-stained clothing of the deceased and recovery of stick; therefore, the aforesaid corroboratory evidence has been admitted by the defence which gives ample support to the ocular version. The learned counsel zealously argued that the recovery of Chhuri, the weapon of offence, has been fully proved and medical evidence also confirms the ocular version. Furthermore, the motive of the offence has been established by the prosecution. The learned counsel pressed into service the submission that the accused repeated the blows of Chhuri which proves his intention to do away with the life of his ex-wife; therefore, he does not deserve any leniency. The learned counsel for the complainant stressed upon the point that the instant appeal is not maintainable because the convict-appellant has not arrayed the heirs of the deceased as party, who according to law are the necessary party. The learned counsel finally submitted that the prosecution has established its case beyond any shadow of reasonable doubt; therefore, the death being normal penalty of the offence of murder recorded by the trial Court may be maintained. The learned counsel cited the following authorities in support of his contention: (1) 1992 SCR 249-294, (2) 2001 SCR 204 (sic), (3) NLR 2001 39 (sic), (4) 2002 MLD (Sh.C.AJK) 366, (5) 2004 MLD 1797, (6) 2003 SCMR 189, (7) 2003 YLR 2926, (8) 2004 PCr.LJ 1518, (9) 2005 SCMR 272-417-523, (10) 2005 PCr.LJ (Sh.C.AJK) 226, (11) 2005 PCr.LJ 464, (12) 2005 PCr.LJ 502, (13) 2005 YLR (SC AJK) 584, (14) 2006 YLR 1467. Sardar Muhammad Azeem Zia, the learned Additional Advocate-General appearing on behalf of the State has fully owned and supported the arguments raised by the learned counsel for the complainant. I have given my due consideration to the arguments addressed at Bar and perused the record with care. The prosecution case basically rests upon the ocular version; therefore, first of all, I am inclined to appraise the eye-witnesses' account. Muhammad Ishaq (P.W.1) deposed that on the fateful day he found Mahmood Ahmad chasing Mst. Maroof Jan. On inquiring, he told Muhammad Younis that Mahmood is chasing his wife to do away with her life. Thereupon, Muhammad Younis also started running with him. Both of them saw that accused gave blows of dagger to Mst. Maroof Jan which hit her upon her abdomen and arm. As soon as Wajid intervened to save Mst. Maroof Jan, Mahmood, accused also gave a blow of Chhuri to him. When Wajid tried to flee away Mahmood accused gave another blow of Chhuri which hit him upon his head. Thereafter, accused started chasing Wajid, thereon he asked the accused to stop there, who stopped, picked up a Danda and gave a blow which hit upon his head. The occurrence was witnessed by Muhammad Younis, Mst. Zubeda, Mst. Maryam, Wajid and Waleed. On hearing hue and cry, Ashraf, Tahir, Nasir and Majid reached at the spot and took the injured to the hospital. The complainant further deposed that the accused committed the occurrence because the father of accused had gifted land measuring 2 Kanals and half portion of the house to Mst. Maroof Jan at the time of her marriage but after sometime relations between the spouses became strained and accused divorced Mst. Maroof Jan. Meanwhile, he armed with dagger has been threatening Mst. Maroof Jan to vacate the house and the land whereat Mst. Maroof Jan approached S.P. and D.M. Poonch to take action against the accused. Mahmood accused along with Azhar trespassed in the above mentioned land and cut down the trees 3/4 days prior to the occurrence. They threatened Muhammad Younis P.W., who was standing nearby, and also sent a warning'to Mst. Maroof Jan to vacate the house and land otherwise she will be killed. The aforesaid statement of Muhammad Ishaq (P.W.1) has been fully corroborated by the evidence of eye-witnesses Muhammad Younis (P.W.2), Waleed (P.W.5) and Wajid Ishaq (P.W.6). It will be worth-mentioning that Waleed (P.W.5), who is 10/11 years old, is son of accused. It transpires from the careful perusal of his statement that it is clear, consisting and confidence inspiring and in spite of lengthy cross-examination it could not be shattered; therefore, he is found competent and quite capable of stating facts of the occurrence. It is an enriched principle of criminal law that the evidence of tender aged 6 person is admissible provided he is found reliable and competent to understand questions and able to give rational answers. The aforesaid witness is natural witness of the occurrence who was present at the time of incident and witnessed the occurrence. It is also admitted on the record that soon after the occurrence he left for her paternal-aunt Mst. Mehbood Jan and remained with her till his statement was recorded by the police under section 161, Cr.P.C. In this regard, I am fortified by a case titled The State through Muhammad Arif v. Khushhal Khan and another 2002 MLD Sh.C. (AJK)

366. It is necessary to note here that Muhammad Ishaq (P.W.1) ands Wajid Ishaq (P.W.6) are injured witnesses. It will be relevant to point out that the mode of cross-examination, suggestion put to the P.Ws. by the defence and especially the explanation of the accused during his examination under section 342, Cr.P.C. suggest that the time of occurrence, the presence of P.Ws. along with deceased Mst. Maroof Jan, the presence of accused and the death of deceased have not been disputed by the defence. For instance, it was suggested to Muhammad Ishaq (P.W.1) at page 10 of his statement recorded by the trial Court in the following manner:-- ? It was again suggested to Muhammad Younis (P.W.2) at page 14 of his statement as under:- It was further suggested to Wajid Ishaq (P.W.6) at page 14 of his statement as follows:-- ? Mahmood Ahmad, accused, during his examination under section 342, Cr.P.C. took the plea that above mentioned P.Ws. Ishaq, Younis and Wajid along with Mst. Maroof Jan deceased launched an attack upon him with hatchet and sticks, by which he sustained injuries. It, therefore, follows that only the manner of occurrence has been disputed by the defence and nothing else. In this manner, the burden of proof shifts upon the defence instead of prosecution at least to show that the accused was deprived of the power of self-control by grave and sudden provocation and he caused death of the person who gave him provocation. In this regard, the accused has taken three folded pleas, (firstly), he took the plea of self-defence in the manner that P.Ws. and deceased wanted to kill him; therefore, he while exercising his right of self-defence killed his wife, (secondly), he took the plea of sudden and grave provocation and (thirdly) due to stress and pressure he was mentally upset and committed the occurrence. As far as the plea of self-defence is concerned, it transpires from the close scrutiny of the file that accused was not justified to take the life of his wife on the plea of self-defence. The perusal of medical examination report shows that he sustained simple injuries caused by blunt weapon whereas according to him he was attacked by Wajid Ishaq (P.W.6) with a hatchet but no incised wound was found on his person; therefore, an impending peril to his life or of great bodily harm could not be proved by the accused. It is admitted principle of criminal jurisprudence that the right of voluntary causing death extends to the accused only where the assault is such as may reasonably cause the apprehension inter alia that death will otherwise be the consequence of such assault. In the instant case, the alleged blows of Sota caused by Muhammad Ishaq (P. W.1) are not by itself sufficient to bestow right of self-defence or to act under grave and sudden provocation. In such state of affairs, the accused completely failed in raising reasonable doubt that he was entitled to the benefit of right of private defence. It has been admitted by the accused during his examination under section 342, Cr.P.C. that 4/5 years prior to the occurrence he had divorced his wife; therefore, no relations remained between him and deceased; thus, he cannot claim that he did so in grave and sudden provocation. The style of cross-examination shows that the defence tried to build the case that the deceased abused the accused and asked him to take away woods and tell his sister to cook food for his father. It is worth-mentioning that the use of mere gesture or abusive language cannot be regarded so grave a provocation to prove the fact that the killing was done on a sudden impulse rather it shows that reason for the murder was previous enmity between the parties, as the accused was annoyed with the deceased because of her obtaining divorce from him, claiming her dower and maintenance allowance for her minor children. Moreover, he was animus to the deceased on account of land measuring 2 Kanals and half portion of the house which was gifted by his father to the deceased at the time of marriage of the spouses. The accused was bent upon to take the possession of the land and the house at any cost. It is also on the record that the accused did not raise the plea of self-defence during the course of investigation. He also failed to produce any evidence in defence. He did not level any allegation of dishonest investigation against Investigating Officer. He did not approach any senior Police Officer. He also did not choose to file private complaint against the complainant party. So far as the plea of pressure and mental capacity of the accused is concerned, there is not an iota of evidence on the record which could lead to the inference that due to the pressure and agony, the accused lost self control and suddenly murdered the deceased. The defence has also tried to build its case that the deceased had opened a shop in her house and she used to open the shop in the dark hours of night; therefore, the accused killed the deceased. It is an enriched principle of law that premeditated murder although to vindicate family honour is not justified and even illicit connection with other person does not provide justification for murder when nothing is brought on record to show that on the day of incident, the deceased was seen by the accused with some other person whereas in the instant case relations of the spouses were strained beyond repair; thus, no question arises about immoral attitude of divorced wife. Mere suspicion of the accused that his ex-wife has been opening shop in the dark hours of night for someone was not sufficiently grave and sudden provocation to cause her death. The weaker sex should not be regarded a chattel and an ex-husband cannot be given the right to take life of her ex-wife on the unfounded suspicion that his ex-wife was carrying an intrigue with someone else. Similarly, the mere disobedience of the ex-wife would be no justification for the accused to kill her. For the sake of argument, if the deceased had asked the accused to take away the woods and ask his sister to cook food for his father, the answer given could not by any stretch of imagination, be treated as a provocation which would have led an ordinary and reasonable man to act in the manner in which the accused did. A careful examination of facts and all attending circumstances of the case show that the nature of attack by repeated blows of Chhuri to the deceased is sufficient determining the intention of accused. The accused gave blows of dagger in a merciless and brutal manner to an unarmed woman who was not able to offer any resistance on account of which she succumbed to the injuries on her way to hospital. In this regard, a case titled Muhammad Nasrullah v. The State 2003 SCMR 189 can be referred, wherein it has been opined as under: "It may be observed that before the benefit of exception with regard to grave and sudden provocation could be given to the accused, the provocation so alleged should be grave and sudden and that by its gravity and suddenness the offender should be deprived to the power of self-control which in the instant case would not find place. The offender cannot be permitted or allowed to make the said plea as an excuse for killing the victim on the said fake plea for seeking lesser punishment or sentence. This Court has time and again observed that law does not take into account abnormal creatures reacting abnormally in the given situation. In the instant case the plea of abuses or use of filthy language of which no details have been given could not be said to be a mitigating circumstance being afterthought and figment of imagination and when even the appellant had not taken the said plea during investigation and no such suggestion was made to the effect to P.W.8 Fida Hussain Investigating Officer and further there being no satisfactory and reliable material on record to support the said plea entitling the appellant to lesser sentence." It has been held in a case reported Naik Muhammad Yaqoob v. The State 2004 PCr.LJ 1518 in the following manner: "However, a provocation is a psychological question. Under the law of provocation, it consists mainly on three elements; the act of provocation, the loss of self-control both actual and reasonable and the retaliation proportionate to the provocation. It is further pointed out that there are five conditions for bringing the case of an accused person under the ambit of provocation, which are: (i) the deceased must have given provocation to the accused, (ii) the provocation must be grave, (iii) the provocation must be sudden, (iv) the offender by reasons of the said provocation should have been deprived of his power of self-control and killed the deceased during the continuance of the deprivation of power of control, (v) the offender must have caused, the death of a person, who gave provocation.. In the present case there is nothing on the record to show that the appellant was provoked. The appellant did not take any such plea in the cross-examination to the witnesses nor in his statement recorded under section 342, Cr.P.C. If he had taken such plea then under Article 121 of the Qanun-e-Shahadat Order, 1984, he was required to have proved the said plea. If no such proof is led by the accused then the Court has to presume the absence of such circumstances. However, if from the facts of the case, a case of provocation appears to have been made out then the above conditions are required to be fulfilled before applying the said principle." In view of aforesaid authorities and detailed discussion, the plea of self-defence or grave and sudden provocation or loss of self-control raised by the accused cannot be believed. The learned counsel for the defence zealously argued that the injuries of the accused were not explained by the prosecution and these were withheld not only in the F.I.R. but also by the eye-witnesses. Suffice to note that F.I.R. is not a detailed document and, thus, if any incident is not specifically mentioned in the F.I.R. that does not demolish the prosecution story, if the same otherwise appears to be plausible and it is supported by reliable evidence 1992 SCR

294. It will not be out of place to mention here that although the complainant could not mention the injuries of accused in F.I.R. but the accused was medically examined by Investigating Officer and this fact was also mentioned in challan report under section 173, Cr.P.C. The P.Ws. denied the fact of his injuries because they might have not taken the notice of simple and superficial injuries at the time of occurrence because the incident took place almost at the time of evening or the accused might have sustained injuries during, scuffle or due to grappling or otherwise; therefore, the factum of non-explanation of the injuries on the person of accused is not sufficient to hold that the accused acted in self-defence. In this regard, I am fortified by a case reported as Muhammad Khalil v. The State 1992 SCR 249 wherein the following dogma was enunciated: "Ch. Muhammad Azam, the learned counsel for the complainant, has owned the arguments advanced by the learned Advocate-General and has further submitted that mere absence of an explanation of the injury on the person of the accused-appellant would not prove the plea of self-defence. He has referred to the cases reported as The State v. Rab Nawaz PLD 1974 SC 87 and Talib Hussain v. Fazal Hussain PLD 1976 SC

518. In the former case it was observed that the Court has to form the opinion regarding the guilt or innocence of an accused upon examination of entire evidence; the prosecution is not bound to explain each injury on the person of an accused. If upon examination of entire evidence in a case, the plea of self-defence is not substantiated, the mere fact that the injuries on the person of an accused were not explained would not bring the case within the ambit of self-defence, especially so when such injuries might have been sustained as a result of physical force during the course of incident due to grappling or otherwise. Identical view was expressed in the latter case, referred to above." In this context, the authorities cited by the learned counsel for the defence do not render any help to him. For instance, in Muhammad Iqbal's case 1993 SCMR 1928, the accused sustained four fire-arm injuries on his person; therefore, in view of the nature of injuries and kind of weapon used for causing same excluded the possibility of injuries being self-inflicted and self-suffered. Moreover, ocular version was not supported by corroboratory evidence and best witnesses of the motive were also not produced by the prosecution. In Manzoor Hussain's case 2003 SCMR 459 the accused and his wife sustained 11 injuries on vital part of the body and it was also held that the accused succeeded to prove that the version put by him is reasonably possible but in the instant case the accused acted in a premeditated and preplanned manner and killed his ex-wife on account of animus of property and dower etc. In Liaquat Ali and 2 others' case PLD 1994 Lah. 193 ocular account was found contradicted by medical evidence and it was also not supported by any confirmatory evidence. As stated earlier, in such-like situation the burden of proof shifts upon the defence at least to prove that his version is reasonable and can be relied upon. In this respect, a detailed judgment has been recorded by this Court reported as The State through Haji Mithu Khan and others v. Muhammad Sabir alias Sabri and 5 others 2005 PCr.LJ

464. My aforesaid view also stands fortified .by a case titled Muhammad Younis v. The State 2005 PCr.LJ 502, wherein it was observed as under:-- "It is an accepted principle of law that when an accused at a criminal trial takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his innocence or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether. In the instant case, the plea taken by the petitioner is without foundation and has not been satisfactorily proved." I find little force in this plea of the learned counsel for the appellant that the eye-witnesses are closely related to the complainant; therefore, their evidence cannot be taken into consideration. It has been observed by the superior Courts of AJK time and again that mere relationship is not by itself sufficient to discard the evidence on account of relationship with the deceased or the complainant. A host of case-law owns this view that I have decided to quote only two cases here. (1) Ibrar Hussain Shah v. The State 1992 SCR 294 (2) Abdul Rasheed and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ

524. It may be mentioned here that the prosecution has abandoned Mst. Zubeda (P.W.2), Mst. Maryam (P.W.4), Nasir Ishaq (P.W.10), Zahid Ahmad (P.W.11) and Muhammad Farooq (P.W.12). It is admitted principle of criminal law that prosecution is not bound to produce all witnesses cited in the calendar of challan but the defence can avail opportunity of producing these witnesses if in its opinion they do not support the prosecution version. (2005 YLR SC (AJK) 584). The same view was affirmed in a case titled Mazhar Ali v. The State 2005 SCMR 523 wherein it was opined that it is the prerogative of the prosecution to examine its witnesses who are considered necessary for its case. It has been observed in Nawaz and another's case 2003 YLR (Peshawar) 2926 that prosecution is not bound to produce all the eye-witnesses as it is the quality of evidence and not quantity which matters such object can be achieved by recording the evidence of even one witness if feels trustworthy. It is very important to observe that besides the ocular version, the prosecution has produced Tahir Ishaq (P.W.8) and Muhammad Ashraf (P. W.13), who found Mst. Maroof Jan deceased and Wajid Ishaq (P.W.6) injured soon after the occurrence. The aforementioned prosecution evidence finds ample, support from the medical evidence. Lady Dr. Anjum Kayani (P. W.17) testified the post-mortem report Exh.P.B., who found stab injuries in right forearm and epigastric area exactly on the same part of the body of deceased whereat deposed by the eye-witnesses. Dr. Zubair Sarwar (P.W.18) also testified the injuries of Muhammad Ishaq (P.W.1) and Wajid Ishaq (P.W.6). According to him, Muhammad Ishaq sustained lacerated wound in right temporal region caused by a blunt weapon whereas Wajid Ishaq sustained lacerated wound at scalp and other deep wound in left flank penetrating upto abdominal cavity caused by a sharp-edged weapon. Dr. Zubair Sarwar also pointed out the injuries exactly on the same parts of the bodies of the injured P.Ws. whereat stated by them and other two eye-witnesses. It will be useful to point out here that the statements of Muhammad Sadiq (P.W.14) and Muhammad Fayyaz (P.W.15) were not challenged during the course of cross-examination, therefore, the same will be deemed to be admitted by the defence. Both the above mentioned witnesses have testified the recovery of blood-stained clothing of deceased, the blood-stained clothing of Muhammad Ishaq (P.W.1), the blood-stained clothing of Wajid Ishaq (P.W.6) and recovery of Danda P.A./1. My above stated view lends support from the following cases:-- (1) Wilayat Khan's case PLD 1985 SC (AJ&K) 41, (2) Mst. Farooq Bibi's case 1999 CLC 1358 (3) Abdul Latif's case 2004 YLR 1663. Besides the above mentioned supportive evidence, the recovery of a dagger P.11 produced by accused, the inquest report Exh.P.U. and site plan Exh.P.O. also provide sufficient confirmatory evidence. The report of Chemical Examiner is also on the record which shows that the clothes of the deceased and dagger taken into possession at the instance of the accused are stained with blood, which is also a circumstance in nature of corroboratory and supporting evidence.. The motive as set up by the prosecution fully supports the prosecution version that Mst. Maroof Jan was done to death because the accused was annoyed with the deceased due to family affairs and he wanted to snatch away the possession of the property from her. Even if, the motive is not proved but the offence against an accused stands proved by reliable and trustworthy evidence, it hardly makes any difference and it does not affect the imposition of normal penalty of death in a murder case. (2001 SCMR 726). The contention of the learned counsel for the complainant that non-impleadment of legal heirs of the deceased is by itself sufficient for dismissal of appeal, is, therefore, repelled as being misconceived and without substance. In this regard, the case-law cited by the learned counsel for the complainant reported as Muhammad Riaz and 2 others v. The State is not applicable to the instant case because of distinguishable facts. It is the golden principle of law that the principles laid down in criminal cases are always founded on facts and circumstances of each case and cannot be loosely applied in an omnibus manner. In the case under report, the accused-appellants were convicted and sentenced to 10 years' R.I. by District Criminal Court, Mirpur. On filing an appeal by father and mother of the deceased, the sentence of Muhammad Riaz and Muhammad Fayyaz accused was enhanced by this Court. It may be necessary to mention here that the State did not prefer any appeal before this Court. The judgment of this Court dated 30-11-2005 was challenged before apex Court by the accused without arraying father and mother of the deceased as party and appeal was only filed against the State. In the aforementioned situation, the apex Court observed that the persons who are interested in the case or likely to be affected by an order and remained party before lower Court are necessary' party to be arrayed in the appeal but in the present case the situation is totally different. The State filed the challan and prosecuted its case before District Criminal Court, therefore, only the State being necessary party was arrayed party before this Court and not the heirs of the deceased. It will not be out of place to mention here that this Court has also to answer the reference. On this account, the prosecution case and the impugned judgment have to be examined in detail. In this view of the matter, the non-impleadment of the legal heirs of the deceased does not affect the proceedings of the appeal. I do not find any substance in this contention of the learned counsel for the defence that the opportunity of cross-examination upon Muhammad Sadiq (P.W.14) and Muhammad Fayyaz (P.W.15) was not afforded to the accused. The perusal of the trial Court file shows that on account of absence of the learned counsel for the defence, the case was adjourned on 8-1-2005 but on the next day of hearing i.e. 13-1-2005 the learned counsel for the defence did not appear before the trial Court and despite of the opportunity given to the accused, they refused to cross-examine the prosecution witnesses. Even otherwise, the defence did not challenge the aforesaid order, dated 13-1-2005 at the relevant time. Similarly, ample opportunity was afforded for defence evidence but the accused could not avail the same; therefore, the trial Court was justified to close the defence but again the accused-appellant did not choose to challenge the above mentioned order dated 15-3-2005 before the proper forum; therefore, at this stage the defence cannot claim any benefit on the basis of aforesaid grounds. I cannot subscribe to this view of the learned counsel for the defence that the accused is not entitled to the extreme penalty of death; therefore, by taking a lenient view death sentence may be altered into lesser punishment. It is cordial principle of criminal jurisprudence that in case the charge of Qatl-e-Amd is proved, the normal penalty under law is death and exceptional circumstances must be shown to exist for taking a lenient view and for awarding lesser penalty, which do not appear to exist in the present case. It needs to be emphasized that the accused acted in a callous and brutal manner and inflicted repeated injuries with dagger to his ex-wife in presence of her minor son just for the sake of greed and covetousness of property; therefore, the normal penalty of death as Qisas could not be reduced. My aforesaid view stands fortified by Iftikhar Ahmad's case 2005 SCMR 272 and Asim's case 2005 SCMR

417. In view of the aforesaid position, it is not deemed expedient to interfere in the impugned judgment recorded by the trial Court which does not suffer from any illegality, manifest error or perversity. It is, therefore, sustained and appeal is dismissed. Consequently, the sentence of Qisas as death is confirmed. The counter-appeal titled Muhammad Ishaq v. Azhar alias Tikka was not pressed during the course of arguments by the learned counsel; therefore, it must fail and is hereby dismissed. The reference is answered in the manner indicated above. The copies of the judgment shall be annexed with two other connected files. H.B.T./10/Sh.C.(AJ&K)????????????????????????????????????????????????????????????????????? Appeal dismissed.