2018 P Cr (PLP)

M. TABASSUM AFTAB ALVI, C.J.

The captioned Appeal and Reference arise out of the same judgment dated 28.10.2004, passed by the learned District Court of Criminal Jurisdiction, Poonch Rawalakot, through which, Muhammad Shakeel and Muhammad Habib Khan, were awarded death sentence, whereas Muhammad Qadeer, respondent, was acquitted of the charges; therefore, these are being consolidated and decided together through the instant judgment.

2. The facts as disclosed in the FIR are that complainant, Ali Akbar Khan, filed a written report at Police Station, Rawalakot, on 24.04.1998, stating therein that he is resident of Chhotagalla. He alleged that there was resentment amongst complainant, his nephew, Muhammad Khalil, and Muhammad Shakeel etc. On 24.04.1998, complainant's grandson, Jazib Sharif, went to Rawalakot bazaar, where Muhammad Shakeel and Muhammad Habib, declaring him a ruffian, battered him at Wagon Stand. The complainant Muhammad Khalil along with his nephew, was present in Khaigallah Bazaar, where Jazib Sharif came and told him about the occurrence. The complainant and Muhammad Khalil, were present in Kueyan Bazaar, meanwhile, Muhammad Shakeel, Muhammad Qadeer and Habib, riding on a Wagon from Rawalakot side, arrived in Kueyan Bazaar Khaigallah, at 03:00 p.m., and alighted from vehicle. Accused, Muhammad Shakeel and Muhammad Habib, who were armed with 'Chhurries', and Muhammad Qadeer, who was armed with stick, launched simultaneous attack upon Muhammad Khalil. Accused, Muhammad Shakeel, inflicted 'Chhurri' blows on right and left hips of Muhammad Khalil, whereas Muhammad Habib, accused, caused him 'Chhurri' blows upon his waist/back. Muhammad Habib, accused, also caused 'Chhurri' blow upon the head of complainant. The accused, Muhammad Qadeer, caused injuries to complainant and Muhammad Khalil, with stick. Muhammad Khalil, in a serious injured condition, was brought at C.M.H. Rawalakot, where he succumbed to the injuries. The accused persons, in a preplanned manner, committed murder of Muhammad Khalil and caused injuries to complainant. The occurrence, besides complainant, was witnessed by Pervaiz Sharif, Jazib Sharif, Ramzan, Muhammad Rasheed and many other people present in Bazaar.

3. As per the aforesaid report, a case, in offences under sections 302, 324 and 34, A.P.C, was registered against the accused-persons at Police Station, Rawalakot, on 24.04.1998. After registration of case, police started investigation. The postmortem of the dead body of Khalil Ahmad, was conducted in CMH, Rawalakot, by Doctor Aftab Hussain, who found the following injuries on the person of deceased:- I. Right pinna cut through and through. II. Linear stab abrasion (3 x 1/2 cm long wide) Lt. Clavicle region. III. 2 stab wounds on (Rt) gluteal region, one on up and one on middle part of (Rt) gluteal region. IV. Measurement of up gluteal wound about 1-1/2" long 1/2 inch gaping and about 3" deep. V. Second wounds is 1-1/2 inch long 1/2 inch gaping 4-1/2" deep touching the hip bone. VI. Second stab wound on back of up (Rt) thigh, one near natal cleft and other is about 4 inches lateral to first one. VII. First wound near natal cleft (Rt) is about 1-1/2" long 1/2" gaping and 4" to 5" deep cutting femoral vessels. There is a Massive Haematoma in the up and mid thigh region. VIII. Small bruise (2 x 2 cm) on Lt shoulder. IX. Small bruise (3 x 2 cm) on back of chest. X. Laceration wound (l x l cm) on back of Rt elbow. Dr. Aftab Ahmad also prepared medical report of Ali Akbar, injured, on 24.04.1998, who found following injuries on his person:- i. Lacerated wound on scalp (3cm x 2cm) above 1 year. ii. Abrasion on Rt up arm (2 x 1/2 cm). He also examined Muhammad Shakeel, accused, on 25.04.1998, and found following injuries on his person:- i. Small contusion (2 x 1 cm) top of mid scalp, it is skin deep. ii. Contusion (Rt) eye-brow 1 x 1 cm). iii. Abrasion it shoulder (6 x 4 cm). iv. Abrasion (Rt) back of lumber region (3 x 2 cm). v. Abrasion (Rt) anterior chest (3 x 2 cm). During investigation, on pointation of accused, Muhammad Shakeel and Muhammad Habib, two knives ('Chhurries') were recovered, whereas a stick was recovered at the instance of accused, Muhammad Qadeer, in presence of P.Ws. Haji Abdul Rahman and Muhammad Hayat Khan; on 25.04.1998. After investigation, all accused-persons, were challaned in offences under sections 302, 324, 34, A.P.C. and 13/20/65, Arms Act, before the trial Court. The Court below recorded statements of accused-persons under section 242, Cr.P.C., on 09.06.1998, who denied guilt and claimed to be innocent. Thereafter, prosecution, out of 17 witnesses, produced 11 in support of its case. After completion of prosecution evidence, accused-persons, were examined under section 342, Cr.P.C., on 20.12.2002, who once again pleaded not guilty and submitted that they were involved in a false case and all evidence was given against them on account of enmity. The accused-persons also produced three D.Ws. in their defense.

4. After conclusion of trial, the learned District Court of Criminal Jurisdiction, Poonch Rawalakot, awarded death sentence as 'Tazir' to Muhammad Shakeel and Muhammad Habib, under section 302(b), A.P.C, for the commission of murder of Khalil Ahmad, whereas accused, Muhammad Qadeer Khan, was acquitted of the charges, vide the impugned judgment dated 28.10.2004. The aforesaid impugned judgment has been called in question by complainant and other legal heirs of deceased, through Appeal No.46/2004, while a Reference has also been made by District Court of Criminal Jurisdiction, Poonch Rawalakot, for confirmation of death sentence of convicts, Muhammad Shakeel and Muhammad Habib, which are the subject matter of the instant judgment.

5. As the instant case was pending since year 2004; therefore, the learned Advocates for parties were directed to file written arguments, who filed the same on 03.04.2018 and 26.04.2018, respectively.

6. Messrs Fazl Mahmood Baig and Waqar Farooq Abbasi, the learned Advocates for appellants/legal heirs, submitted in written arguments that occurrence was committed by three accused-persons, namely, Muhammad Shakeel, Muhammad Habib and Muhammad Qadeer, and prosecution fully proved its case against them through cogent and convincing evidence; therefore, two of them were awarded death sentence by trial Court; however, while appreciating evidence to the extent of Muhammad Qadeer, respondent, the Court below fell in error, whereas he, armed with stick, was present at spot and inflicted blows to deceased. The learned Counsel further submitted that stick was also recovered from Muhammad Qadeer, respondent; however, the Court below wrongly extended him benefit of doubt. They pointed out that a specific role of raising 'lalkara' was attributed to Muhammad Qadeer, respondent, who along with co-accused shared common intention, because they travelled with other accused-person in a Wagon, arrived at spot and launched attack with stick upon deceased as well as complainant; however, the Court below failed to consider common intention of the aforesaid accused and illegally acquitted him of the charges. The learned Advocates further agitated that FIR was not a substantive piece of evidence, wherein it could not be mentioned that Muhammad Qadeer, raised 'lalkara'; however, the eye-witnesses clearly deposed role of the aforesaid respondent, in their statements, which should have been given weight, but the Court below failed to do so and extended him benefit of doubt wrongly. They contended that when two versions emerged from evidence on record, one favouring accused and other favouring prosecution, then the version favouring prosecution was required to be taken into consideration; however, the Court below while not doing so committed error. The learned Counsel maintained that weapon of occurrence, a stick, was recovered from Muhammad Qadeer, respondent, which was a material piece of evidence against him; however, the Court below ignored the same. They further submitted that defense produced D.Ws. just to extend benefit of alibi in favour of Muhammad Qadeer, accused, whereas D.Ws. clearly deposed in their statements that they did not know about occurrence; however, the Court below did not consider this aspect of the matter. The learned Counsel contended that evidence of Ali Akbar, complainant, was also not appraised by the trial Court in its true perspective, because he deposed at page 12 of his statement that he told to police about raising 'lalkara' by Qadeer, accused, and even otherwise, it is well settled principle of law that minor contradictions, discrepancies or improvements, made in the statements of prosecution witnesses, are ignored. The learned Counsel maintained that according to the statement of complainant, P.Ws. Sadiq, Rasheed, Ramzan, Jazib Sharif and Pervaiz, were present at spot; hence, presence of witnesses was fully proved. The learned Counsel contended that through direct evidence, the presence of Muhammad Qadeer and co-accused-persons, in light of statements of eye-witnesses and medical report, was established on record, but the trial Court ignored the aforesaid fact and wrongly acquitted Muhammad Qadeer, of the charges. The learned Advocates submitted that evidence of related witnesses could not be ignored merely on ground of relationship, because there was nothing established on record that P.Ws. had any rancor or animosity with Qadeer, accused. The learned Counsel submitted that defense side could not establish through D.Ws that defense party was attacked by complainant-party and Khalil Ahmad, deceased, was done to death in self-defense, whereas it is well established principle of law that the portions of evidence, which neither cross-examined nor rebutted, are read against accused, rather accused-party launched attack upon complainant-party having been armed with knives and stick in a preplanned manner. The learned Counsel pointed out that Muhammad Shakeel and Muhammad Habib, convicts, who were awarded death sentences by the Court below, fled away from country and did not return as yet. The learned Counsel submitted that the aforesaid convicts and Muhammad Qadeer, respondent, belong to a group of habitual offenders, who after committing crimes leave country; therefore, by accepting the appeal filed by legal heirs, Muhammad Qadeer, accused, may also be sentenced as death. The learned Advocates in support of their arguments placed reliance upon the following case law:- i. PLD 1977 SC 446. ii. PLD 1979 SC(AJ&K) 130. iii. 2005 PCr.LJ 1384. iv. PLD 2008 SC 115. v. PLD 2008 SC 123. vi. 2010 SCMR 1009. vii. 2012 YLR 168.

7. Sardar Javaid Nisar, the learned counsel for Muhammad Qadeer Khan, accused-respondent No.1, narrated facts of the case in his written arguments and submitted that enmity between parties was admitted because principal accused, Muhammad Shakeel, contracted 'Nikah' with fiancee of complainant's nephew. He pointed out that a day prior to occurrence, Jazib Sharif, gave beating to Muhammad Shakeel's conductor over parking vehicle near to his house and on next day Muhammad Shakeel and Muhammad Habib, gave beating to Jazib Sharif, at Rawalakot vehicle stand, afterward, Jazib Sharif, went towards Khaigallah bazaar where he met to his grandfather, Ali Akbar, and told him about the quarrel, thereupon, complainant, Ali Akbar, gathered Muhammad Rasheed, Pervaiz Sharif, Muhammad Sadiq, Muhammad Khalil and Muhammad Ramzan, and asked them to take revenge from Muhammad Shakeel, who used to drive wagon, for the last 10/12 years, from Rawalakot to Tararkhal, and as soon as Muhammad Shakeel, along with passengers arrived at Khaigallah, the complainant and the aforesaid persons stopped his vehicle, alighted him from it and started to beat him. The learned Counsel contended that Muhammad Khalil, deceased, had a 'Chhurri' in his hand, which was snatched from him by Muhammad Shakeel, and during scuffle, the same hit to Muhammad Khalil, who sustained injury and later on died. The learned Counsel submitted that occurrence took place at Kueyan Bazaar, where hundreds of people were present; however, none of them was associated as eye-witness, rather prosecution cited 17 witnesses in calendar of challan, out of which only 11 were produced in support of its case. He pointed out that all eye witnesses are relatives to deceased, who belong to the same family; however, the only independent eye-witness of occurrence, was Muhammad Said Khan, who was abandoned by prosecution, which makes the prosecution case doubtful. The learned Counsel further contended that there were lot of contradictions in the statements of prosecution witnesses, as complainant Ali Akbar, did not depose in FIR as well as in his statement recorded under section 161, Cr.P.C, that Muhammad Qadeer, accused, raised 'lalkara', whereas in his Court statement he made improvement in this regard. Likewise, he deposed that he was accompanied by Muhammad Khalil, in Khaigallah Bazaar, when Jazib Sharif, told him about earlier quarrel, whereas in FIR and in the statement recorded under section 161, Cr.P.C., he did not depose about the presence of any other person at Kueyan Bazaar; however, he made improvement that when Jazib Sharif, told him about quarrel, Sadiq, Ramzan, Rasheed, and Pervaiz, were also present at Kueyan Bazaar. He contended that Jazib Sharif, P.W. in his Court statement deposed that the aforesaid persons were Present at Kueyan Bazaar, when he told about occurrence to his grandfather, Ali Akbar, whereas the aforesaid assertion of Jazib Sharif P.W, was inconsistent with the contents of FIR as well as the statement of Ali Akbar, complainant. He further submitted that Jazib Sharif P.W, deposed about motive, as an altercation during Elections, whereas Ali Akbar, complainant, did not mention about altercation in Election, rather deposed about resentment in the tribe. The learned Counsel agitated that Muhammad Ramzan P.W., deposed that they were standing in corner of Kueyan Bazaar, when Jazib Sharif, came there; however, someone else told that Shakeel and Habib, gave beating to Jazib Sharif, at vehicle stand; therefore, the aforesaid witness did not depose that Jazib Sharif, told him about quarrel. He pointed out that Muhammad Ramzan, is son of Muhammad Khalil, deceased, and as per prosecution story Muhammad Khalil, was attacked in presence of eye-witnesses, but astonishingly, Muhammad Ramzan, did not make any effort to save his father from accused-persons, which is an unnatural character of the aforesaid witness; hence, the same makes prosecution case doubtful. The learned counsel contended that the occurrence did not occur, as alleged by prosecution, because there were two Clinics within 100 meter near to the place of occurrence, and if eye-witnesses were present at the spot then they might have taken victim to the aforesaid Clinics for treatment, however, they did not do so, which means that they were not present at the spot. The learned counsel contended that Pervaiz Sharif P.W., deposed in his statement dated 24.04.1998 that accused-persons attacked upon Jazib Sharif, Haji Ali Akbar and Khalil Khan, whereas Jazib Sharif, did not depose that he was attacked by accused-persons. He emphasized that Pervaiz Sharif P.W, deposed that Muhammad Qadeer, inflicted stick blow upon the head of Muhammad Khalil, whereas the medical report of deceased did not support the aforesaid version of P.W. The learned Counsel contended that recovery witnesses Abdul Rehman and Muhammad Hayat, are close relatives of complainant, who live 4/5 kilometers away from the place of occurrence, whereas the place of recovery was a populated area, but nobody from the locality was associated with recovery proceedings, which is clear violation of law. He further maintained that D.Ws Javaid Asghar, Muhammad Ramzan son of Said, and Muhammad Saleem, clearly deposed that vehicle of Muhammad Shakeel, was intercepted by some 6/7 persons and they did not see Muhammad Habib and Muhammad Qadeer, accused-persons, at spot; hence, non-presence of Muhammad Habib and Muhammad Qadeer, accused-persons was established on record; therefore, Court below correctly acquitted Muhammad Qadeer, of the charges. He contended that if prosecution case is admitted that Muhammad Shakeel and Muhammad Habib, accused, gave beating to Jazib Sharif, at Rawalakot vehicle Stand and thereafter they chased Jazib Sharif, upto Khaigallah, then question arises that why they did not launch attack upon Jazib Sharif, instead of Muhammad Khalil, rather actual story is that complainant party stopped Muhammad Shakeel's vehicle and launched attack upon him; therefore, complainant party was aggressor. The learned Counsel finally craved for dismissal of appeal filed by complainant/legal heirs of Muhammad Khalil, deceased, and in support of his arguments, placed reliance upon the following case law:- i. 1982 PCr.LJ 1107. ii. 1992 SCR 250. iii. 1996 SCMR 112. iv. 2005 PCr.LJ 415. v. 2005 SCR 273. vi. 2008 YLR 2866. vii. PLD 2007 SC(AJ&K) 27 viii. 2007 SCR 333. ix. 2008 SCR 2. x. 2015 SCR 290.

8. We have given our dispassionate thought to the written arguments filed by the learned Advocates for parties and gone through record of the case with utmost care.

9. The prosecution case, as per FIR, is that; Jazib Sharif, grandson of Ali Akbar Khan, complainant, went to Rawalakot bazaar, on 24.04.1998, where Muhammad Shakeel and Muhammad Habib, battered him at Wagon Stand. The complainant along with his nephew, Muhammad Khalil, was present in Khaigallah Bazaar, when Jazib Sharif, came and told him about the occurrence. Thereafter, complainant and Muhammad Khalil, were present in Kueyan Bazaar; meanwhile, Muhammad Shakeel, Muhammad Habib and Muhammad Qadeer, riding in a Wagon, arrived at Kueyan Bazaar Khaigallah, at about 03:00 p.m., and alighted from vehicle. Accused, Muhammad Shakeel and Muhammad Habib, who were armed with 'Chhurries', and Muhammad Qadeer, who was armed with stick, launched simultaneous attack upon Muhammad Khalil. Accused, Muhammad Shakeel, inflicted 'Chhurri' blows on right and left hips of Muhammad Khalil, whereas Muhammad Habib, accused, caused him 'Chhurri' blow upon his waist/back. Muhammad Habib, accused, also caused 'Chhurri' blow upon the head of complainant. The accused, Muhammad Qadeer, caused injuries to complainant and Muhammad Khalil, with stick. Muhammad Khalil, in a serious injured condition, was brought at C.M.H. Rawalakot, where he succumbed to the injuries. The occurrence, besides complainant, was witnessed by Pervaiz Sharif, Jazib Sharif, Ramzan, Muhammad Rasheed and many other people present in Kueyan Bazaar Khaigallah. The motive behind occurrence was stated to be previous resentment between parties.

10. The prosecution produced 11 witnesses, out of 17, in support of its case. The P.Ws, namely, Ali Akbar Khan, complainant, (P.W.1), Muhammad Sadiq (P.W.2), Muhammad Rasheed (P.W.3), Muhammad Ramzan (P.W.4), Jazib Sharif (P.W.5), Pervaiz Sharif (P.W.6) and Muhammad Said Khan (P.W.7), were cited as eye-witnesses; however, amongst them P.Ws. Nos. 2, 3 and 7, were abandoned by prosecution; therefore, 'there are four eye-witnesses in the instant case. The statements of eye-witnesses, Ali Akbar Khan, complainant, (P.W.1), Muhammad Ramzan (P.W.4), Jazib Sharif (P.W.5) and Pervaiz Sharif (P.W.6), were recorded by the trial Court on 02.03.1999, 18.08.2000, 15.09.2000 and 11.10.2000, respectively.

11. It is important to observe here that in the instant case, Muhammad Shakeel and Muhammad Habib, convicts, who were awarded death sentences by the trial Court, did not appear before the Court below at the time of pronouncement of judgment and went abroad; hence, they did not file appeal against the impugned judgment dated 28.10.2004, whereas complainant as well as legal heirs of deceased, filed an appeal against acquittal order of Muhammad Qadeer Khan, accused and craved for his conviction. Therefore, first of all, we would like to take up case of Muhammad Qadeer Khan, accused.

12. The contention of the learned counsel for appellants/legal heirs, that occurrence was committed by three accused-persons, namely, Muhammad Shakeel, Muhammad Habib and Muhammad Qadeer, and prosecution fully proved its case against them through cogent evidence; hence, two of them were awarded death sentence by trial Court; however, while appreciating evidence to the extent of Muhammad Qadeer, respondent, the Court below fell in error, whereas, he, armed with stick, was present at spot and inflicted blows to deceased, has been considered. As per FIR allegation against the aforesaid accused is that, he caused injuries to complainant, Ali Akbar Khan and Muhammad Khalil, deceased, with stick. Ali Akbar Khan (P.W.1), Muhammad Ramzan (P.W.4) and Jazib Sharif (P.W.5), deposed in their statements that Muhammad Qadeer, caused stick blows to deceased. They do not depose that on which part of the body of Muhammad Khalil, deceased, stick blow was inflicted. However, Pervaiz Sharif (P.W.6), deposed in his statement that Muhammad Qadeer, inflicted stick blow upon the head of Muhammad Khalil. Now it is to be ascertained whether the aforesaid assertion of P.Ws is supported from postmortem report of deceased. The complainant deposed in his statement that Muhammad Qadeer, inflicted stick blows to him and Muhammad Khalil, deceased; however, in cross-examination he deposed that he did not remember how many stick blows were inflicted to him. A perusal of postmortem report of deceased as well as medical report of Ali Akbar, complainant, reveals that the assertions of P.Ws, regarding infliction of stick blows, to complainant and deceased by Muhammad Qadeer, did not find support from postmortem and medical report.

13. The next contention of the learned Counsel for appellants/legal heirs, that a specific role of raising 'lalkara' was attributed to Muhammad Qadeer, respondent, who along with co-accused shared common intention, because he travelled with co-accused-persons in a Wagon, arrived at spot and launched attack upon deceased and complainant with stick; however, the Court below failed to consider common intention of the aforesaid accused and illegally acquitted him of the charges, has also been taken into consideration. We are alive that FIR is not a substantive piece of evidence, wherein it could not be mentioned that Muhammad Qadeer, raised 'lalkara'; however, a minute perusal of record reveals that statements of P.Ws recorded under section 161, Cr.P.C, also do not disclose about 'lalkara' attributed to Muhammad Qadeer. Although the P.Ws., in their Court statements, deposed that Muhammad Qadeer, raised a slogan/'lalkara' to kill them; however, non-mentioning of the same in FIR as well as in statements recorded under section 161, Cr.P.C., cannot be ignored, because when an eye-witness having fresh memory of incident, after a short span of time of occurrence, narrates story, then such kind of major slip of their memory cannot be expected. There is nothing on record that P.Ws were not satisfied from their assertions recorded by Police under section 161, Cr.P.C. Therefore, after scrutinizing record, it seems that P.Ws made an improvement in their statements to the extent of raising 'lalkara' by Muhammad Qadeer, accused; hence, the Court below in right direction did not give weight to the aforesaid assertion of P.Ws. In such state of affairs, when accusation levelled against Muhammad Qadeer, accused, by prosecution, could not be established through medical reports, it would not be appropriate to award him punishment; therefore, the points agitated by the learned Counsel for complainant/legal heirs of deceased, for awarding punishment to Muhammad Qadeer, accused, are not tenable and the grounds recorded by trial Court for his acquittal are sufficient to meet the ends of justice. Thus, after scrutinizing record, we are at considered view that the Court below while acquitting Muhammad Qadeer, accused, of the charges levelled against him, did not commit any error; hence, the impugned judgment does not call for any interference.

14. As discussed in paragraphs Nos.11 and 12, supra, that in the instant case, Muhammad Shakeel and Muhammad Habib, convicts, who were awarded death sentences by the trial Court, did not appear before the Court below at the time of pronouncement of judgment and went abroad; hence, they did not file appeal against the impugned judgment dated 28.10.2004. Now, it is to be ascertained whether the Reference made by trial Court for confirmation of death sentences of the aforesaid convicts, can be decided in their absence or not? Suffice to observe here that an Appeal No.46/2004, has been filed by complainant as well as legal heirs of deceased, which is being decided through the instant judgment; therefore, along with the same, the Reference made by trial Court, may also be decided. The aforesaid view finds support from a case reported as Muhammad Asif v. The State (PLD 1985 (Lahore) 33), wherein, it was observed as under:- "Yousaf accused has not surrendered to custody nor is there any appeal by him. The murder reference for the confirmation of his death sentence and the appeal filed by Asif have come up for hearing, Learned Advocate General contended that Yusuf is an absconder, therefore, the murder reference can be disposed of with the appeal of Asif. In support of his submissions, be relied on the principle laid down by the Supreme Court in the case of Gul Hassan v. State (1) and Hayat Bakhsh v. State (2). The facts of the first cited case are that Gul Hassan and Bahadur convicts in that case after their conviction under section 302, P.P.C., executed a power-of-attorney for filing an appeal. Later on their way to the District Jail they escaped from police custody. Bahadur was, however, re-arrested but Gul Hassan remained at large. The appeal was dismissed and the death sentence was confirmed by High Court in the absence of Gul Hassan. In the petition for Special Leave to appeal before the Supreme Court, it was argued that High Court should not have heard the reference and the appeal filed by the Attorney till Gul Hassan's arrest. It was laid down by the Supreme Court that the appeal filed by the counsel on the basis of power-of-attorney executed by Gul Hassan in favour of a person before his absconsion was thus not properly constituted and should have been dismissed by the High Court on that score alone and in this view Gul Hassan being a fugitive from law and a contemner was not entitled to a hearing. Leave granted to him on the limited questions of law was rescinded and the view adopted by the Judges in the High Court was endorsed that if a person decamps he thereby forfeits the right of audience, the sentence of death may be confirmed in his absence. The same view was reiterated in the second case cited above. In the instant case Yusuf convict has not surrendered to custody and is still at large. We are, therefore, of the view that the murder reference can be disposed of along with the appeal of Asif."

15. We have minutely gone through the evidence of eye-witnesses. They are unanimous on the point that convicts, having been armed with 'Chhurries', arrived at the spot and inflicted blows upon the body of Muhammad Khalil. The deposition of eye-witnesses regarding infliction of blows upon the body of deceased, when compared to the postmortem report, it reveals that Muhammad Khalil, deceased, sustained following injuries on his person:- I. Right pinna cut through and through. II. Linear stab abrasion (3 x 1/2 cm long wide) Lt. Clavicle region. III. 2 stab wound on (Rt) gluteal region, one on up and one on middle part of (Rt) gluteal region. IV. Measurement of up gluteal wound about 1-1/2" long 1/2 inch gaping and about 3" deep. V. Second wound is 1-1/2 inch long 1/2 inch gaping 4-1/2" deep touching the hip bone. VI. Second stab wound on back of up (Rt) thigh, one near natal cleft and other is about 4 inches lateral to first one. VII. First wound near natal cleft (Rt) is about 1-1/2" long 1/2" gaping and 4" to 5" deep cutting femoral vessels. There is a Massive Haematoma in the up and mid thigh region. VIII. Small bruise (2 x 2 cm) on Lt shoulder. IX. Small bruise (3 x 2 cm) on back of chest. X. Laceration wound (1 x 1 cm) on back of Rt elbow. So, the infliction of blows of 'Chhurries' to Muhammad Khalil, deceased, was established through evidence of eye-witnesses as well as medical evidence. Dr. Aftab Hussain, also appeared in the witness box, who fully corroborated the postmortem report through his statement. Moreover, recovered 'Chhurries' were sent to Chemical Examiner for analyses, who opined that the same were stained with human blood. Thus, prosecution story in respect of causing 'Chhurries' blows by convicts to Muhammad Khalil, deceased, is fully corroborated by evidence. It is pertinent to observe here that although witnesses are relatives of deceased, but it is settled principle of law that mere relationship is no ground to discard evidence of a related witness. In such state of affairs, we find no reason to disbelieve their testimony. Thus, the sentences awarded to Muhammad Shakeel and Muhammad Habib, convicts, are liable to be maintained.

16. The authorities cited by the learned Advocates for parties are distinguishable from the peculiar facts and circumstances of the instant case; therefore, need not to be discussed in detail.

17. The crux of above discussion is that the impugned judgment recorded by the District Criminal Court, Poonch Rawalakot, on 28.10.2004, is maintained. The Reference made by the said Court, for confirmation of death sentences, is answered in affirmative. A copy of the instant judgment shall be annexed with other relevant file. HBT/9/Sh. C (AJ&K) Appeals dismissed.