State Versus SHARAFAT alias IMRAN Khawaja Ata Ullah Chak , Muhammad Noor Ullah Qureshi, Sadaqat Hussain Raja and Gohar Altaf

ORDER

IFTIKHAR HUSSAIN BUTT, J. ---The above titled reference made under section 23(7), I.P.L. is an outcome of difference of opinion between two learned Members of Additional District Criminal Court, Muzaffarabad whereby the learned Additional Sessions Judge has acquitted the accused-respondents by extending them the benefit of doubt whereas the learned Additional District Qazi has passed the order of conviction and sentence against the accused-respondents.

The brief facts forming the background of the above titled reference are that Muhammad Iqbal, complainant, lodged an F.I.R. at 11-45 a.m., on 29-5-1998 at Police Station Leepa Karnah alleging therein that he is a school teacher. He was performing his duty on 29-5-1998, when he received an information about the quarrel between Sharafat and others Mujahids) and Abdul Waheed, his close relative. The complainant after receiving the aforestated information reached at the spot where he met Abdul Shakoor who told him that Abdul Waheed and Abdul Shakoor were engaged in some conversation standing nearby Antallian Bridge, meanwhile, two boys Sajid son of Maqbool Sheikh and Farooq son of Abdul Qayyum resident of Bala Ghaipura came there running. On query, they told them that a Mujahid is beating them. In the meantime, Mujahid Muhammad Alam, code name Hamza, came there enraged and started beating the aforementioned boys. Abdul Waheed rescued them from him and some hot words were also exchanged between them. Muhammad Alam Mujahid threatened Abdul Waheed and went to his residence, the office of Union Council. Abdul Shakoor and Abdul Waheed proceeded towards Kappa Galli. When they reached near the shop of Matee-ur-Rehman at about 10-30 a.m. Muhammad Alam Mujahid obstructed their way and started abusing them. After a few while, Sharafat son of Aziz-ur-Rehman and his brother-in-law Muhammad Munir son of Mansha (Mujahid) also reached there. The aforesaid persons tried to drag Abdul Waheed towards the residence of Mujahideen, the office of Union Council. On seeing this, Muhammad Saleem, Muhammad Sharif alias Shareen, Arshad, Muhammad Akram, Muhammad Yaseen and Muhammad Yaqoob reached at the spot but the above mentioned Mujahideen ran away and went into their house. After a short while, two Mujahideen namely Sharafat and Muhammad Munir armed with kalashnikov and .30 bore pistol came out of their house and raised a hollo. Thereafter, the aforesaid Mujahideen entered into their house and after opening the windows started firing at the complainant party. Sharafat fired with kalashnikov upon Abdul Waheed and Muhammad Saleem which hit on their heads whereupon both of them died on the spot. Muhammad Munir Mujahid fired with .30 bore pistol at Muhammad Yaseen which hit upon his head who also died spontaneously. Muhammad Alam code name (Hamza) also fired shots by .30 bore pistol upon Muhammad Arshad who sustained serious injuries. After that the aforesaid Mujahideen fired indiscriminately which caused serious injuries to Muhammad Yaqoob, Muhammad Sharif alias Shareen and Muhammad Akram. The aforesaid incident was witnessed by Farman Ali, Abdul Shakoor, Mir Wali, Ali Shan, Muhammad Zubair, Muhammad Sakhi and Muhammad Ilyas. It was further contended in the report that the assailants belonged to Tehreek-e-Jihad and they were rambling in the vicinity whereby Sharafat was also a deserter from the Army. Abdul Waheed was a Councillor, who often asked the aforesaid Mujahideens not to prove in the locality. The assailants, according to the report, were inimical to Abdul Waheed and on account of the aforesaid enmity they committed murder and injured different persons.

On this report a case under sections 302/324/337 and 34, A.P.C. was registered by Ch. Muhammad Rashid S.-I./S.H.O. (P. W.25).

On 29-5-1998 after arriving at the spot, Ch. Muhammad Rashid, S.-I. Police (P.W.25) prepared the inquest reports of Abdul Waheed deceased (Exh.P.U.), Muhammad Saleem deceased (Exh.P.V.), Muhammad Yasin deceased (Exh.P.W) and Muhammad Arshad deceased (Exh.P.X.). On the same day, the blood-stained clay of Muhammad Yaseen deceased (vide recovery memo. Exh.P.EE,), Abdul Waheed deceased (vide recovery memo. Exh.P.CC.), Muhammad Saleem deceased (vide recovery memo. Exh.P.DD.) and Muhammad Arshad deceased (vide recovery memo. Exh.P.FF) was taken into possession from the place of death of aforesaid deceased in presence of Muhammad Sakhi (P. W.6) and Ali Akbar (P. W.7). The eleven empties of kalashnikov (vide recovery memo. Exh. P. GG.) from the place wherefrom Sharafat accused fired shots and eight empties of .30 bore pistol (vide recovery memo. Exh.P.HH.) from the place wherefrom Muhammad Munir accused made firing, where taken into possession by said Ch. Muhammad Rasheed (P.W.15) in presence of above mentioned P.Ws. He also prepared the injury sheet of Muhammad Sharif Exh.P.NN. and obtained his medical examination certificate Exh.P.WW., an injury sheet of Muhammad Akram Exh.P.XX./2, obtained his medical examination certificate and an injury sheet of Muhammad Yaqoob Exh. PP.

After the post-mortem on 30-5-1998 the blood-stained clothing of Muhammad Arshad, deceased, (vide recovery memo. Exh.P.NN), which is marked as Exh. P. NN./1 during the course of judgment as the injury sheet of Muhammad Sharif has already been marked as Exh. P. NN. Muhammad Yaseen, deceased, (vide recovery memo. Exh.P.OO.), Muhammad Saleem, deceased, (vide recovery memo. Exh.PP) and Abdul Waheed, deceased, (vide recovery memo. Exh.P.QQ.) were taken into possession in presence of Abdul Rehman (P.W.9) and Shahzaman (P.W.10). On the same day, seven empties fired by Muhammad Alam, accused, were taken into possession vide recovery memo. Exh. P.II. attested by Muhammad Sakhi (P. W.6) and Ali Akbar (P. W.7).

On 2-6-1998 Ch. Muhammad Rasheed S.-I: Police got prepared the site plan Exh.P.JJ. from Muhammad Ismail Girdawar (P. W.19).

On 9-6-1998 Sharafat accused led to the recovery of kalashnikov along with the magazine vide recovery memo. Exh.P.KK. whereas Muhammad Alam, accused led to the recovery of pistol .30 bore along with magazine vide recovery memo. Exh.P.LL. attested by Muhammad Alam (P.W.14) and Maqbool Hussain (P.W.15). ????

On 10-6-1998, a mouser along with two magazines was recovered at the pointation of Muhammad Munir, accused vide recovery memo. Exh.P.MM. in presence of aforesaid witnesses.

In the light of document Exh.P.Z., it was reported by Chemical Examiner vide its report, dated 29-6-1998 that the clay of Abdul Waheed, Muhammad Saleem, Muhammad Yaseen and Muhammad Arshad deceased, Shalwars and shirts of Abdul Waheed, Muhammad Saleem, Shalwar,. shirt and Banyan and Waskat of Muhammad Yaseen and Shalwar and. Banyan of Muhammad Arshad, deceased were found stained with blood.

It was reported by Director Forensic Science Laboratory, Punjab that eleven crime-empties of 7.62 mm were found to have been fired by the kalashnikov recovered from Sharafat, accused, eight empties of .30 bore pistol were found to have been fired from the pistol .30 bore recovered from Muhammad Munir, accused and seven crime-empties were found to have been fired by the .30 bore pistol recovered from Muhammad Alam accused. ????

It was also reported by Serologist vide its report, dated 17-9-1998 that the clay of Abdul Waheed, Muhammad Saleem, Muhammad Yaseen and Muhammad Arshad shirts and Shalwars of Abdul Waheed and Muhammad Saleem, Shalwar, shirt, Banyan and waskat of Muhammad Yaseen and Shalwar and Banyan of Muhammad Arshad, deceased, were found stained with human blood.

The post-mortem of the dead bodies of all four deceased was performed on 30-5-1998 by Dr. Naseer Ahmad Shaikh C.M.O. C.H.M: Muzaffarabad (P.W.20). He noticed the following injuries on the dead body of Abdul Waheed, deceased, vide post-mortem report Exh.P.P., cause by fire-arm:--

He also noticed the following injuries on the dead body of Muhammad Saleem, deceased, vide post-mortem report Exh. P.TT. , caused by fire-arm:---

He noticed the following injuries on the dead body of Muhammad Yaseen deceased, vide post-mortem report Exh. P. UU. , caused by fire-arm:--

He further noticed the following injuries on the dead body of Muhammad Arshad, deceased, vide post-mortem report Exh. P. V V., caused by fire-arm:--

During the investigation, an offence under section 13/20/65, Arms Act was added and a challan was submitted against all the accused persons before District Criminal Court, Muzaffarabad, which was later on transferred to Additional District Criminal Court, Muzaffarabad. The accused persons during their examination under section 242, Cr.P.C. pleaded not guilty and claimed the trial.

Muhammad Iqbal, complainant, (P.W.1), Abdul Shakoor (P.W.2), Muhammad Ilyas (P.W.3), Muhammad Sakhi (P.W.6), Ali Akbar P.W.7), Abdul Rehman (P.W.9), Muhammad Sharif (P.W.11), Muhammad Akram (P.W.12), Muhammad Alam (P.W.14), Maqbool Hussain (P.W.15), Sajid (P.W.16), Farooq (P.W.17), Khadim Hussain Head Constable Police (P. W.18), Muhammad Ismail Girdawar (P.W.19), Dr. Naseer Ahmad Shaikh (P.W.20), and Ch. Muhammad Rashid S.-I. Police (P.W.25) were produced in support of the prosecution case, whereas Farman Ali (P.W.4), Meer Walli (P.W.5), Ali Shan (P.W.8), Shahzaman (P. W.10), Muhammad Yaqoob (P.W.13), Chemical Examiner (P.W.21), Director Forensic Science Laboratory (P.W.22), Khalid Mahmood Chohan, A.S.P. (P.W.23) and Raja Shabbir Hussain, D.S.P. (P.W.24) were given up by the prosecution.

During the purgation conducted by the trial Court, the eye-witnesses were found Adil.

After completion of the prosecution evidence on 8-7-2003, an opportunity was afforded to the accused persons for furnishing their explanation in 'respect of evidence and all circumstances adduced against them by the prosecution, during examination under section 342, Cr.P.C. All the accused persons pleaded that false evidence was produced against them.

All the accused persons entered into the witness-box and' got recorded their statements whereas one Gulzaman (D.W.) was also produced along with medical examination certificates Exhs.D.A. and D.OO.

After completion of the trial, the difference of opinion arose between learned Members of Additional District Criminal Court, Muzaffarabad. The learned Additional Sessions Judge, a member of the Court, extended the benefit of doubt in favour of the accused persons whereas the learned Additional District Qazi awarded sentence of Qisas to Sharafat Mir, accused, on two counts under section 302(A), A.P.C., sentence of two years' R.I. under section 324, A.P.C., sentence of one year's R.I. along with the sentence of Daman Rs.1,000 under section 337-F(I), sentence of one year's R.I. along with the sentence of Daman Rs.4,000 under section 338-F(vi). It was also ordered that the accused shall be detained in judicial lock-up till the payment of Daman Rs.5,000 and in case of execution of the sentence of death, Daman Rs.5,000 shall be realized from his inheritance. It was further ordered that the accused will also undergo sentence of one year's S.I. along with the fine Rs.2,000 under section 13/20/65, Arms Act. In case of default of payment of fine, the accused has to undergo two months' S.I. However, the benefit of section 382-B, Cr.P.C. was extended in his favour.

Muhammad Munir alias Munir Ahmad and Muhammad Alam, accused, were awarded the sentence of Qisas under section 302(A), A'.P.C. along with six months' S.I. and a fine of Rupees one thousand each under section 13/20/65, Arms Act. In case of default of payment of fine, the accused persons have to undergo one month's S.I. However, the benefit of section 382-B, Cr.P.C. was extended in their favour.

Abdul Qayyum, accused, was awarded the sentence of three years' R.I. under section 324, A.P.C., the sentence of "Daman" Rs.4,000 under section 337-F(iii) along with sentence of one year's R.I. and under section 337-F(v) the, sentence of daman Rs.5,000 along with sentence of two years' R.I. However, the benefit of section 382-B, Cr.P.C. was extended in his favour.

Aziz-ur-Rehman, accused, was sentenced to undergo three years' R.I. under section 324, A.P.C., the sentence of one year's R.I. along with the sentence of "Daman" Rupees four thousand under section 337-F(iii). The benefit under section 382-B, Cr.P.C. was extended in his favour. It was also ordered that the accused shall be detained in judicial lock-up till the payment of daman Rs.4,000.

The aforesaid difference of opinion between the learned Members of Additional District Criminal Court, Muzaffarabad is the subject-matter of this judgment.

Gohar Altaf, Advocate, the learned counsel for Sharafat accused, argued that the learned Additional District Qazi fell in grave error while passing the order of conviction and sentence against the accused persons. The learned counsel contended that the accused has been falsely implicated in the case and the FIR. is not reliable because Muhammad Iqbal, complainant, in his written F.I.R. levelled allegations of committing murder and causing injuries-against Sharafat, Muhammad Munir and Muhammad Alam, accused, but later on he further implicated .Abdul Qayyum and Aziz-ur-Rehman, accused, with the commission of alleged offences. The learned counsel maintained that the statements of prosecution witnesses are not -reliable because they are interested and chance witnesses, who have made numerous improvements in their deposition. The learned counsel also criticized the factum of recovery and submitted that recovery of deadly weapon could not be' proved because the respectables of locality have not been cited as recovery witnesses. Furthermore, they belong to village Antallian and are also closely related to the complainant party. The learned counsel laid much stress on the point that the medical evidence does not support the ocular version because according to the eye-witnesses they were standing at lower place whereas the accused party was firing from a higher place i.e., the windows of the office of Union Council while according to Dr. Naseer Ahmad Shaikh (P. W.20) the seats of injuries show that the shots were hit in a straight manner, which is not possible, and proves the fact that the prosecution witnesses were not present at the spot. The learned counsel pressed into service the submission that it has been admitted by the prosecution that accused Muhammad Munir and Aziz-ur-Rehman also sustained injuries but the same were not explained by the prosecution and even their injury sheets were not appended with the challan, which were later on produced by the prosecution on the order of High Court. The learned counsel further submitted that the learned Additional Sessions Judge has rightly extended the benefit of doubt to the accused, which may be maintained and the order of conviction and sentence passed by learned Additional District Qazi be set aside.

Noor Ullah Qureshi, the learned counsel appearing on behalf of Muhammad Alam and Muhammad Munir, accused persons, argued with vehemence that the prosecution story is not reliable because the complainant has made numerous improvements during his statement. The learned counsel pointed out that according to Muhammad Iqbal, complainant, F.I.R. was lodged on the deposition of Abdul Shakoor, an eye-witness; therefore, it was not possible that Abdul Shakoor did not tell him the whole story of the occurrence. The learned counsel agitated that the instant case is an unseen occurrence whereby the chance and interested witnesses have made a lot of improvements which are fatal to the prosecution version. The learned counsel strenuously contended that the prosecution has given up Farman Ali, Mir Wali, Ali Shan and Yaqoob P.Ws. who were natural witnesses of the occurrence which proves 'the fact that if the aforesaid witnesses would have appeared in the Court they would have not supported the prosecution version. The learned counsel submitted that according to the facts and circumstances of the case Matee Ullah shopkeeper was the most important witness of the prosecution but he was also not produced by the prosecution. The learned counsel further maintained that the alleged motive of the occurrence was not proved by the prosecution; therefore, the prosecution story cannot be relied upon. The learned counsel laid much stress upon the point that according to the remand form Exh.D.X. dated 10th June, 1998, the recovery of pistol could not be effected upon Muhammad Munir accused, therefore, the recovery proceedings are fake and not worthy of any credence. The learned counsel zealously argued that the weapons of offence were not shown to Doctor P.W. and according to the statement of Dr. Naseer Ahmad Shaikh (F.W.20), the injuries upon the person of the deceased and the injured prosecution witnesses could not be caused by a pistol or revolver and only by a gun whereas according to the prosecution Muhammad Alam and Muhammad Munir fired shots with pistols, in this manner, the medical evidence is in conflict with the ocular version which makes the prosecution case doubtful and unreliable. The learned counsel pressed into service the submission that the recoveries of weapons of offence were made after eleven days of the arrest of accused, persons, therefore, these also do not provide any support to the prosecution case. The learned counsel further argued that the site plan cannot be relied upon as corroborative piece of evidence against the accused persons because the requisite details have not been recorded and furthermore Muhammad Ismail Girdawar (P.W.19) failed to explain the details of the places of occurrence during his statement before the trial Court. The learned counsel also criticized the statement of Abdul Rasheed S.-I. (P. W.25), the Investigating Officer and submitted that after his admission about the dishonest investigation and withholding of site plan, his statement cannot be taken into consideration. The learned counsel finally submitted that a concocted case was registered against the accused persons and the prosecution miserably failed to prove its version beyond any shadow of reasonable doubt, therefore, the finding of the learned Additional Sessions Judge may be upheld and the view taken by the learned Additional District Qazi be ignored. In support of his contentions, the learned counsel cited the following authorities:--

Sadaqat Hussain Raja, Advocate, the learned counsel for Abdul Qayyum and Aziz-ur-Rehman, accused persons, vehemently argued that both the accused persons have 'not been nominated in the written F.I.R. and their names were later on added, therefore the F.I.R. is not reliable. The learned counsel further contended that Abdul Shakoor (P.W.2) has also not stated the names of the above mentioned accused persons in his statement recorded under section 161, Cr.P.C. The learned counsel further maintained that neither a charge has been framed against the accused persons under section 242, Cr.P.C. nor an explanation was sought from them about the prosecution evidence appearing against them in their statements recorded under section 342, Cr.P.C. therefore, an order of conviction and sentence passed by learned Additional District Qazi is not sustained and the accused have rightly been acquitted of the charge by the learned Additional Sessions Judge. The learned counsel pointed out that the Investigating Officer has not explained the places wherefrom both the accused persons fired shots and injured the prosecution witnesses. The learned counsel agitated that neither any weapon of offence was recovered from the accused persons nor any pellet was taken into possession from the place of occurrence attributed to the aforementioned accused persons; therefore, the prosecution has miserably failed to establish a case beyond any reasonable doubt against the accused persons, who may be acquitted of the charge.

Kh. Ata Ullah Chak, Advocate, the learned counsel for the complainant, controverted the arguments raised by the learned counsel for the defence and submitted that the F.I.R. in the case was promptly lodged. The accused persons and the eye-witnesses have been named therein and a specific role of firing straight shots upon the persons of the deceased and injured prosecution witnesses have been clearly attributed to them. The learned counsel also submitted that the-occurrence is of broad-daylight, therefore, the question of identification or false implication does not arise. The learned counsel pointed out that according to the suggestion made by the defence the date of occurrence, the place of occurrence, the presence of deceased, the presence of eye-witnesses, the presence of accused party and the death of deceased by firing shots have been admitted by the defence. According to him, the defence has only disputed the time and manner of occurrence, therefore, the prosecution has to prove only time and manner of occurrence because according to the defence version, the complainant party launched an attack upon the accused party to eject the accused party from the office of Union Council. The learned counsel zealously contended that Muhammad Iqbal (P.W.1), complainant, has clearly mentioned the time of occurrence 10-30 a.m. not only in the F.I.R. but also in his statement. Similarly Muhammad Ilyas (P.W.3), Muhammad Sharif (P.W.11) and Muhammad Akram (P.W.12) also stated the time of occurrence 10-30 a.m. in their examination-in-chief but the above stated portions of their statements were not challenged in cross-examination. Similarly Sakhi Muhammad (P. W.6) did not depose the time of occurrence in his examination-in-chief but in cross-examination he testified the time of occurrence as 10-30 a.m. which proves the fact that occurrence took place at 10-30 a.m. The learned counsel pressed into service the submission that five eye-witnesses have supported the prosecution story and they have fully explained the manner of occurrence as to how Abdul Waheed, Muhammad Saleem, Muhammad Yasin and Muhammad Arshad were done to death and how Muhammad Sharif and Muhammad Akram were injured by the accused party. The learned counsel also pointed out in detail the certain portions of the statements of eye-witnesses whereby they have fully supported the prosecution tale. The learned counsel explained that it has come on the record 'during the cross-examination that the houses of the certain people are situated near the place of occurrence but except Muhammad Ilyas (P. W.3) this question was not asked from P. Ws. as to whether the aforesaid people had witnessed the occurrence or not whereas Muhammad Ilyas has testified that at the time of occurrence he did not see the above stated people. The learned counsel laid great stress upon the point that it has been amply proved by the suggestion put to Muhammad Ilyas, Muhammad Sakhi, Muhammad Sharif and Muhammad Akram prosecution witnesses that P. Ws. were present at the spot but their presence at the place of occurrence was never challenged during their cross-examination. The learned counsel further submitted that the accused persons in their statements in the defence have categorically admitted the presence of the eye-witnesses and alleged that the eye-witness have been firing shots upon them, which also proves the presence of the eye-witnesses at the spot. The learned counsel also contended that according to Muhammad Iqbal (P.W.1), he wrote the F.I.R. while he was on the way to police station and after reaching the police station he also orally stated the names of Abdul Qayyum and Aziz-ur-Rehrnan, accused persons, but not a single question was put to him about his oral statement in connection with the above stated oral assertion of the accused persons during their cross-examination. The learned counsel zealously argued that at the time when three persons were killed instantly and one was severely injured, it was impossible in the state of confusion for Abdul Shakoor to narrate the whole story to Muhammad Iqbal and there is every possibility that after knowing about the involvement of Abdul Qayyum and Aziz-ur-Rehman in the occurrence he also nominated them in the F.I.R. as accused persons. The learned counsel further maintained that the medical evidence fully supports the ocular version and the eye-witnesses have stated in unequivocal words the place and seat of injuries and according to the site plan and the statements of the eye-witnesses, it was quite possible for the accused persons to target the heads and faces of the deceased. The learned counsel while dealing with the statement of Dr. Naseer Ahmad Shaikh P.W. submitted that doctor is not a Ballistic Expert and if the weapons of offence were not shown to him, this fact does not adversely affect the prosecution case, however, the doctor has explained in his statement that the injuries of the deceased and the injured P. Ws. cannot be caused by a common pistol and revolver rather by a gun and special type of revolves having much velocity and force. The learned counsel strenuously argued that the site plan is a self-explanatory document which gives ample support to the prosecution case and the eye-witnesses have explained not only their position but also the position of deceased and the injured prosecution witnesses in the statements which fully corroborates the keynotes of the site plan. The learned counsel further submitted that the alleged motive has been fully proved by the prosecution witnesses. The learned counsel pressed into service the submission that the prosecution has not suppressed the injuries of the accused persons because the prosecution got them medically examined. According to the learned counsel the injury sheet of Muhammad Munir accused Exh.D.A. shows a superficial fire-arm wound over the right thigh without any exit wound whereas injury sheet Exh.D.OO. pertaining to Aziz-ur-Rehman also does not show any fire-arm injury and his injury over the cheek and right arm has been reported to be caused by a blunt weapon which could have resulted due to fall on hard object, therefore, no adverse interference can be drawn against the prosecution. The learned counsel emphasized that if the accused persons could approach the High Court for obtaining medical examination reports, they could have also approached the High Court for registration of a counter-case or they could have at least instituted a private complaint against the complainant party but they did not opt such-like actions, which further strengthens the prosecution version. The learned counsel further maintained that all the eye-witnesses are not related to the complainant party and their relationship was also not challenged in the cross-examination, even otherwise, the testimony of prosecution witnesses on account of relationship cannot be discarded when it wrings true and gets ample support from sufficient corroboratory evidence like recoveries of weapons of offence, the post-mortem report, the recovery of blood-stained clothing and clay and the reports of Chemical, Ballistic and Forensic Science Laboratory Experts. The learned counsel pointed out that certificate Exh.D.C. about handing over of a kalashnikov cannot be taken into consideration because neither the author of the document, was produced nor the source of document was explained whereas the prosecution has produced reliable evidence about the recovery of kalashnikov which was taken into possession on the pointation of Sharafat accused. The learned counsel vehemently contended that it is prerogative of prosecution to produce any number of witnesses and in the instant case five eye-witnesses were produced by the prosecution, therefore, by giving up Farman Ali, Mir Walli, Ali Shan and Yaqoob does not cast serious doubt on the prosecution case. According to the learned counsel, Mir Walli and Ali Shan appeared before the trial Court on numerous occasions but due to the slackness of the accused party their statements could not be recorded whereas Muhammad Yaqoob (P.W.13) died during the trial. The learned counsel finally submitted that the accused party did not take any defence of person or property in their statements recorded under section 242, Cr. P. C. and even after the suggestions put to the prosecution witnesses that the inhabitants of the area were firing shots upon them on the day of occurrence they did not specifically plead any defence during their statements recorded under section 342, Cr.P.C. but again the accused persons while appearing as witnesses deposed that the prosecution witnesses along with Haji Murtaza and Muhammad Rafique and with four hundred persons launched an attack and fired shots upon them. Gulzaman the only defence witness has stated that when he reached at the spot he saw that about four hundred civilian and Army personnel were gathered and shots were being fired from both the sides. In this manner, the accused party has failed to establish any plausible defence but the learned Additional Sessions Judge miserably failed to appreciate the evidence of the parties in its true perspective and extended the benefit of doubt to the accused persons in an erroneous manner, therefore, the impugned judgment cannot be upheld whereas the judgment recorded by learned Additional District Qazi is well-reasoned, which may be maintained. In support of his arguments reliance was placed upon the following authorities:- ???????????

Syed Ejaz Ali Gilani, the learned Assistant Advocate-General appearing on behalf of the State, fully owned and supported the arguments raised by the learned counsel for the complainant and also submitted that during purgation the eye-witnesses were found Adil, therefore, their deposition is reliable and worthy of credence. The learned State counsel further maintained that the testimony of doctor P.W. fully supports the ocular version and no contradiction between the eye-witnesses and medical evidence has been proved on the record. The learned counsel also contended that the presence of eye-witnesses at the place of occurrence has been proved by the suggestion put to the eye-witnesses. According to him, the prosecution was not duty bound to produce all of its witnesses when material evidence was already produced. The learned State counsel finally submitted that the judgment of the learned Additional District Qazi has been recorded in a legal fashion which may be upheld whereby the learned Additional Sessions Judge has committed an illegality while extending the benefit of doubt to the accused persons which is not sustainable. In support of his arguments, the learned State counsel placed reliance upon the following case-law:--

I have given my due consideration to the respective contentions of the learned counsel for the parties, perused the record with care and the case-law cited. The prosecution case primarily rests upon ocular version; therefore, firstly it will be appropriate to discuss the statements of the eye-witnesses. According to the prosecution, due to a quarrel between Abdul Waheed deceased and Sharafat, accused, Muhammad Munir and Sharafat tried to drag Abdul Waheed towards their residence, the office of Union Council. Thereupon Muhammad Saleem, Muhammad Sharif, Arshad, Muhammad Akram, Muhammad Yasin and Muhammad Yaqoob went to his rescue but the accused persons went into their residence and after opening windows started faring upon the complainant party.

Muhammad Iqbal, complainant (P.W.1) is not an eye-witness, who reported the F.I.R. according to the information furnished by Abdul Shakoor (P.W.2).

Abdul Shakoor (P.W.2) while supporting the prosecution story stated that Sharafat fired a shot of kalashnikov upon Abdul Waheed which hit on his neck and exited from the head. Thereafter, Sharafat fired a seeond shot upon Muhammad Saleem which hit on his mouth, jaws and cheek and exited from the backside of his head. Muhammad Munir fired a shot of .30 bore pistol upon Muhammad Yasin, who died on the spot, Muhammad Alam, accused, also fired a shot of .30 bore pistol upon Arshad, who got severely injured and later on succumbed to the injuries in MDS. After that Abdul Qayyum by taking pistol from Muhammad Munir fired a shot upon Sharif which hit on his leg while Aziz-ur-Rehman after taking .30 bore pistol from Muhammad Alam fired a shot upon Akram which hit on his thigh.

Muhammad Ilyas (P.W.3) while supporting the prosecution version deposed that when Saleem, Sharif, Arshad, Yasin, Akram, Yaqoob and Shakoor came to rescue Abdul Waheed, the accused persons went into the camp and started firing from the windows of camp. Sharafat fired a shot upon the head of Abdul Waheed which exited from the other side and he died on the spot. Sharafat fired second shot of kalashnikov upon Saleem which hit on the lower part of his right eye and exited from the backside of his head, thereafter he fired another shot upon Muhammad Yaqoob which hit on his left hand. Munir fired a shot with pistol upon Yasin which hit upon his right cheek and exited from the head, resultantly Yasin also died instantaneously. Muhammad Alam fired a shot with pistol upon Arshad, who got severely injured and later on succumbed to the injuries in MDS. Aziz-ur-Rehman, accused, after taking pistol from Muhammad Alam fired a shot upon Akram which hit on his thigh who fell down. Abdul Qayyum after taking pistol from Munir, accused, fired a shot upon Sharif which hit on his left leg and he also fell down.

Muhammad Sakhi (P. W.6) testified that on the intervention of Saleem, Arshad, Yasin, Shakoor and Yakoob, the accused left Abdul Waheed and went into their camp and after operating windows Sharafat fired upon Abdul Waheed which hit on the backside of his head and the bullet exited from front side. Sharafat fired a second shot of kalashnikov upon Muhammad Saleem which hit on his mouth and bullet exited from the head thereafter he fired another shot upon Muhammad Yaqoob which hit on his left hand. Munir accused fired a shot with .30 bore pistol upon Yasin which hit on his mouth and the bullet exited from the head. Muhammad Alam accused also fired with .30 bore pistol which hit upon the mouth of Muhammad Arshad and the bullet exited from the head. Thereafter Abdul Qayyum after taking pistol from Munir fired a shot upon Sharif which hit on his leg. Aziz-ur-Rehman after taking pistol from Muhammad Alam fired shot upon Akram which hit on his thigh.

Muhammad Sharif (P. W.11) deposed that on intervention of Yasin, Akram, Arshad and Shakoor, the accused persons left Abdul Waheed and went into their quarter and. after opening windows, Sharafat fired a shot of kalashnikov upon Abdul Waheed which hit on the backside of his head and bullet exited from the forehead who died on the spot. Thereafter Sharafat fired second shot upon Saleem which hit near his right eye and bullet exited near his right ear who also died instantly. Munir fired a shot with .30 bore pistol which hit upon the forehead of Yasin and the bullet exited from the head who also died spontaneously. Muhammad Alam fired a shot of .30 bore pistol upon Arshad which hit on his mouth and the bullet exited from the -head who got severely injured and later on died in MDS. Abdul Qayyum, accused after taking pistol from Munir fired a shot upon him (P.W.), which hit on his left leg. Aziz-ur-Rehman after taking pistol from Muhammad Alam fired a shot which hit upon Muhammad Akram, who also got injured. Sharafat fired a shot upon Yaqoob which hit on his right hand.

Muhammad Akram (P. W.12) stated that on intervention of Sharif, Saleem, Yasin and Arshad, the accused left Waheed and went into their quarter. Saharafat accused, fired a shot of kalashnikov which hit upon the head of Abdul Waheed who died instantaneously. Thereafter, Sharafat accused, fired another shot which hit near the right eye of Saleem who also died on the spot. Munir, accused fired a shot with .30 bore pistol upon the forehead of Muhammad Yasin and the bullet exited from the backside who died spontaneously. Muhammad Alam fired a shot upon Arshad which hit near his right eye and the bullet exited from the head, who got severally injured and later on succumbed to the injuries in MDS. Abdul Qayyum after taking pistol from Munir fired a shot which hit upon the left leg of Sharif. Aziz-ur-Rehman after taking pistol from Muhammad Alam fired a shot upon him (P.W.) which hit him on his thigh and the bullet exited from the other side. Resultantly, he fell down. Yaqoob also got injured by the firing of Sharafat, accused.

A careful perusal of above stated ocular version shows that it is clear, convincing and reliable therefore, do not find any earthly reason to discard the evidence of eye-witnesses who have also been found Adil during purgation. The purgation of evidence further strengthens the case of prosecution to accept the credibility of eye-witnesses. In this regard, this objection of the learned counsel for the defence does not appear to be well-founded that the prosecution evidence is full of material contradictions because no material contradiction appears in the statements of eye-witnesses. As far as the contradictions are concerned, there is a clear difference between a contradiction and a discrepancy. Contradiction means the statement of the opposite or a denial or an inconsistent statement, whereby the mere discrepancy does not amount to an inconsistency and denial of the facts expressed by a witness. In ordinary course of nature some, discrepancies are inevitably bound to occur on account of lapse of memory and power of observation and perception. Parrot like statement can only be expected from the witnesses who go through several rehearsals and are well-tutored. If the ocular version is cogent, coherent and worthy of credence about the main story of the prosecution, the minor discrepancies do not matter much. Furthermore, defence in spite of lengthy cross-examination failed to assail credit of eye-witnesses or extract anything which might render their presence doubtful.

It will be appropriate to mention here that the defence has already admitted the presence of eye-witnesses at the spot, therefore, the argument of the learned counsel that the eye-witnesses are chance witnesses whose presence at the spot is doubtful, is therefore, repelled as being misconceived and without substance.

I have carefully gone through the evidence of prosecution as well as the defence along with the statements of accused recorded under sections 242 and 342, Cr.P.C. The accused persons neither in their statements under section 242, Cr.P.C. nor under section 342, Cr.P.C. have taken any specific defence, however, a perusal of the suggestions made upon the eye-witnesses during the cross-examination and defence evidence shows that the accused have taken the defence of person and property. It is admitted, principle of criminal jurisprudence that in the presence of counter-version the Court is duty bound to put both the versions into juxtaposition and analyze the same in its true perspective. The version taken by the defence seems to be improper, concocted and afterthought. For the reason that. the accused persons never raised a counter-version in their statements recorded under section 242, Cr.P.C. and even after putting suggestions to the eye-witnesses during the cross-examination that the complainant party launched an attack with lethal weapons upon the accused party again kept mum about taking any counter-version in their examination under section 342, Cr.P.C. but again the accused party while appearing as witness in their defence took counter-version as suggested to the prosecution witnesses during cross-examination. I am cognizant of the fact that in absence of raising counter-version in the statements recorded under section 242, Cr.P.C. or 342, Cr.P.C. the accused are not debarred from taking any counter-version at the time of cross-examination of the prosecution witnesses or at the stage of defence because it is settled principle of criminal law that it is always the responsibility of the prosecution to prove its case beyond any reasonable doubt but in the aforesaid situation the onus of proving different manner of occurrence and the existence of circumstances bringing the case within any of the general exceptions, will be upon the defence. In this regard, I am fortified by a case reported as Abdul Razzaq and another v. The State 1984 PCr. LJ 1039 wherein it has been opined in para. l0 at page 172 of the report as under:--

Even otherwise, it transpires from the perusal of cross-examination of the eye-witnesses that the place of occurrence, the presence of accused party, the presence of eye-witnesses, the death of Abdul Waheed, Muhammad Saleem, Muhammad Yasin, Muhammad Arshad and the injuries of Muhammad Akram, Yaqoob and Sharif with deadly weapons stand admitted by the defence. The aforesaid observation also gets more strength from the evidence of defence whereby Sharafat, accused, deposed that at the time of occurrence Haji Murtaza Abdul Shakoor, Sharif, Muhammad Akram, Muhammad Ilyas, Master Iqbal, Muhammad Rafique, Sakhi Muhammad and many other persons have been firing upon the accused party. Muhammad Munir; accused, has also testified that three/four hundred people were firing and pelting stones upon the accused party and he also saw dead bodies of Abdul Waheed, Muhammad Yasin and Muhammad Saleem at the place of occurrence, therefore, the objection raised by the learned counsel for the defence that the eye-witnesses are chance witnesses and their evidence is not reliable, cannot be considered.

It will be useful to point out here that even testimony of a chance witness can be relied upon without corroboration of any independent evidence. In support of my aforesaid view a case titled Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 can be cited wherein it has been held at page 253 of the report as under:

However, in the present case ample corroboratory and confirmatory evidence in the form of recoveries and medical evidence is available on the record which proves that the accused persons Sharafat, Muhammad Alam and Muhammad Munir committed the murder of Abdul Waheed, Muhammad Saleem, Muhammad Yasin and Muhammad Arshad.

The learned counsel zealously argued that Matee Ullah, a shopkeeper, was an important witness of the occurrence but he was not produced by the prosecution. It may be noted that production of Matee Ullah was not necessary for the prosecution in the circumstances of the case when the other five eye-witnesses were produced in the trial Court and according to Muhammad Sakhi (P.W.6) at the time of occurrence he did not see Matee Ullah. The perusal of challan file reveals that Mir Walli (P.W.5) and Ali Shan (P.W.8) were produced by the prosecution before the trial Court but their statements were not recorded for one and another reason, however, Muhammad Yaqoob (P. W.13) died during the trial. Therefore, the non-production of eye-witnesses namely Farman Ali, Mir Walli, Ali Shan and Yaqoob does not cast any doubt upon the prosecution version and the defence cannot get any benefit out the non-production of said witnesses because it was at liberty to examine them in defence. This view stands fortified from a reported as Zar Bahadar v. The State 1978 SCMR 136 wherein at page 138 of the report it was opined.

In the case of Muhammad Rafique v. State 1999 SCMR 1208, the apex Court considered a similar argument regarding non-production of prosecution witnesses, as under:--

The same view was affirmed by apex Court of AJK in a case titled as Abdul Aziz v. Muhammad Lal and 2 others 1994 YLR 1755 wherein the apex Court held that it is not the duty of the prosecution to produce each and every witness cited in the calendar of challan. It depends on the will of the prosecution to produce such witness whom it deems necessary for proving the guilt of the accused. However, if the evidence of any of the witnesses is so material that in absence of it no just decision could be pronounced by the Court, the Court is competent to summon such witness and record his statement.

It is worth noting that the blood-stained clay of all four decea3ed, seized by police from the place of occurrence vide seizer memo. Exh. P. CC. Exh. P. DD. Exh. P. EE. and Exh. P. FF. is amply proved by the deposition of Muhammad Sakhi (P.W.6), Ali Akbar (P.W.7) and Ch. Muhammad Rashid S.-I. Police (P.W.25). Thus, it will be improper to suggest that the occurrence did not take place as alleged by the prosecution but the same took place at some other place and a false story was fabricated. The place of occurrence is also supported by the site plan Exh.P.JJ. and the statement of Muhammad Ismail Girdawar (P.W.19) which is fully supported by the evidence of eye-witnesses who have corroborated the keynotes of the site plan about the distance of firing from the accused party upon the deceased and injured eye-witnesses. Therefore, I do not see any force in this plea of the learned counsel for the defence that the offence was committed at some other place and the occurrence was not witnessed by anyone.

The learned counsel has pressed into service the submission that eye-witnesses are closely related to the complainant party, therefore, being interested, their evidence is not reliable. It is evident from the perusal of file that Iqbal is cousin of Abdul Waheed, deceased, whereas defence did not cross-examine Abdul Shakoor (P.W.2), Ali Akbar (P.W.7), Muhammad Sharif (P:W.11), Muhammad Akram (P.W.12) and Maqbool Hussain (P.W.15) about the relationship while Sakhi Muhammad (P.W.6) has categorically stated that he is not related either to the deceased or to the injured prosecution witnesses. Same is the case of Abdul Rehman (P.W.9) and Muhammad Alam (P.W.14). However, Abdul Shakoor (P.W.2) is brother of Arshad, deceased. Even otherwise there is not an iota' of evidence which could prove that the eye-witnesses were animus to the accused party. It is by now settled position of law that the evidence of related witnesses cannot be ruled out of consideration merely on the basis of relationship and conviction under law can be recorded on the evidence of related witnesses without any further corroboration. However, as abundant caution some corroboration is needed for confirmation and clarity of the ocular account. My aforesaid view finds support from the following authorities:

The main objection of the learned counsel for the accused is that the medical evidence runs counter to the ocular testimony. According to the learned counsel, it has been stated by the eye-witnesses that the accused party was firing from the higher position towards lower position whereupon the deceased and injured P.Ws. were standing but according to the post-mortem reports and the statement of Doctor (P.W.20) the shots hit to the deceased appear to have been caused straight on the front while standing which according to the place of occurrence is not possible because if a shot is fired from higher place to lower place, then it should produce oblique injury and it cannot be inflicted in a straight direction. On the contrary, the learned counsel for the complainant has contended that it has been abundantly explained by the eye-witnesses that the accused persons have been firing from the windows of the office of Union Council towards the place of death of the deceased and the injured P.Ws. which is not situated at lower place. The learned counsel for the complainant further argued that all the deceased sustained injuries on the head and upper parts of their bodies i.e. the face, neck and forehead. Therefore, the infliction of injuries in a straight manner on the front upon the deceased and the injured P.Ws., who were standing, was quite possible according to the site plan and the evidence of the P.Ws. I have given my earnest consideration to the points raised by the learned counsel for the defence and also perused the relevant portions of the evidence of the eye-witnesses. The eye-witnesses have testified that the accused party was not at a higher place from the place of occurrence, which does not make firing impossible upon the upper parts of the bodies of the deceased and injured P.Ws. For instance, Muhammad Ilyas (P.W.3) deposed in the following manner:

Similarly, Sakhi Muhammad (P.W.6) stated as under:-

Muhammad Sharif (P. W.11) deposed:-

Ali Akbar (P.W.7) was suggested as under:--

It transpires from the above captioned portions of the evidence of prosecution witnesses that the accused party was not placed at much higher position as compared to the deceased and the injured P.Ws., therefore, keeping in view the height, distance and seats of injuries, the infliction of injuries on the front in a straight manner was quite possible.

The learned counsel also agitated that according to the statement of doctor, the injuries sustained by the deceased and injured P.Ws. were not caused by the pistols whereas according to the prosecution,. Muhammad Yasin and Muhammad Arshad, deceased, were done to death by firing of pistols, along with Muhammad Sharif and Muhammad Akram who also sustained injuries by the firing of pistols. I cannot agree with this contention of the learned counsel for the defence because the minute scrutiny of the statement of doctor reveals that he has not refuted the prosecution version rather he has given explanation of his observation in the manner that the injures sustained by the deceased cannot be caused by a normal type of pistol or revolver rather these can be caused by modern type of pistol and revolver having much velocity and force. In this view of the matter, no conflict has been traced out between ocular version and the medical evidence. The doctor, who conducted post-mortem examination on the dead bodies of deceased, found fire-arm injuries exactly on the same parts of the bodies of deceased, which the ocular version alleges. The aforementioned fact clearly corroborates the evidence of eye-witnesses that the deceased were in fact fired at in the way as testified. In support of his contention, the learned counsel cited Aasia Bibi's case 2005 SCR 1, wherein it has been opined by the apex Court that medical evidence in every case cannot be considered as conclusive proof. However, if the opinion expressed in the medico-legal report in the light of injuries found on the person of the deceased 'is directly in conflict with ocular testimony, then ocular evidence is not to be relied upon. In the case under report, according to the prosecution, the complainant and the deceased were at the distance of about 35 feet from the entry gate and at a distance of 2 to 3 feet from each other when the accused opened fire but in the post-mortem report the height of deceased was recorded as 5"-7". Injury No.1 which, was described the cause of death, was hit when the deceased was in a bending position. On this account, the apex Court held that it cannot be ruled out that injuries Nos.1 and 3 were caused when either deceased was lying on a bed or the accused party was at a higher place which can be first floor/storey of the house, which is not the case of prosecution whereas in the present case, as stated earlier, the deceased and injured P.Ws. were hit by the accused party when they were standing in front of them, therefore, the authority mentioned above cannot render any help to the defence.

It will be useful to mention here that doctor is not a Ballistic Expert who could form an opinion about the fire-arms. On the other hand, it has been recorded by Ballistic Expert that the empties of kalashnikov and the pistols recovered from the place of occurrence have been found to be fired from the kalashnikov and pistol taken into possession on the pointation of accused persons. The seizer of blood-stained clothing of all the deceased along with three injured P.Ws. with their injuries sheets, inquest reports, report of Chemical Examiner, report of Serologist and the post-mortem reports are in nature of corroboratory and confirmatory evidence which fully support the prosecution case. The presence of blood-stained clay and its recovery from the site of occurrence also support the version of the prosecution the deceased were done to death at the place testified by the eye-witnesses. The recovery of kalashnikov, .30 bore pistol and mousar pistol along with magazines is a further corroboratory piece of evidence. The defence has pressed upon the document Exh.D.C. according to which a kalashnikov was handed over to police by some Army Officer but the same is not tenable because neither the original document has been produced nor its scribe. The Investigating Officer has also categorically refuted the suggestion that the obtained kalashnikov from the army Personnel. On the contrary it has been sufficiently proved by the evidence of Muhammad Alam (P.W.14) and Maqbool Hussain (P.W.15) that kalashnikov, pistol and a mousar pistol were recovered at the pointation of accused persons. Both of the above mentioned witnesses are neither related to the complainant party nor nursed any grudge against the accused party. The learned counsel has also submitted that both of the eye-witnesses to recovery do not belong to locality and they hail from village Antalian Leepa, therefore, the recovery of weapon of offence is not reliable. The perusal of evidence of the witnesses to recovery shows that it does not suffer from any material contradiction. I may observe here that the recovery of weapon of offence at the instance of accused persons is not strictly governed by the provision contained in section 103, Cr.P.C. The said provision pertains to search by a Police Officer under Chapter (VII) of Criminal Procedure Code and not to the case where a weapon of offence is produced or recovered by a police at the instance of an accused person. The kalashnikov and the pistols were recovered at the instance of accused from the ceiling of room where the accused persons have been living. In such state of affairs the recoveries of kalashnikov and pistols do not suffer from any illegality. In this regard, reference may be made to a case titled Ibrar Hussain Shah v. The State 1992 SCR 294.

The same view was affirmed in a case titled Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524, wherein at page 251 of the report, the following dogma was enunciated:--

The learned counsel for the defence also argued that the recovery of mousar pistol is also doubtful because on the day of recovery i.e. 10-6-1998, the accused was produced before the trial Court for obtaining remand. In support of his argument he referred to the remand form Exh.D.X, which appears at page 124 of the challan file. It transpires from the perusal of document Exh.D.X. that the remand form was submitted before the trial Court on 11th June, 1998. It has also been explained by the Investigating Officer that on 10-6-1998 he took Muhammad Munir from Muzaffarabad to Leepa and on the same day came back to Muzaffarabad and recovered the weapon of offence on 10-6-1998 at the instance of Muhammad Munir, accused, therefore, it cannot be held that on 10th June, 1998 the recovery of mousar pistol from Muhammad Munir accused was fake and fictitious. In view of the aforestated corroboratory and confirmatory evidence, it has become crystal clear that ocular account in cogent, convincing and confidence- inspiring.

I also do not see much substance in this contention of the learned counsel for the accused party that the injuries of the accused persons were suppressed by the prosecution; therefore, the prosecution story has become doubtful. A perusal of medical report of Muhammad Munir, accused Exh.D.A. shows a superficial oblique fire-arm wound over right thigh but neither a bullet inside the wound nor an exit wound was found. Similarly, the medical examination report of Aziz-ur-Rehman Exh.D.OO. shows an injury over right buttock but not caused by a fire-arm. The injuries over the cheek and right arm with fracture of teeth were also found blunt. Both the accused persons appeared before the trial Court and got recovered their statements in defence but they did not nominate any person who had fired shots upon them, whereas the P.Ws. have categorically stated that both the accused persons were not injured during the occurrence and they also refuted the suggestion of the defence that the accused persons were attacked by the complainant party or by some other person. Now the question arises as to whether on account of aforesaid injuries, the prosecution story should be held doubtful. Although the medical examination reports of the injured accused were not annexed with the challan file by the Investigating Officer and later on these were produced on the orders of High Court but during the investigation the accused persons were duly examined and their injury sheets were prepared. If at all due to the carelessness or negligence of the Investigating Officer, these could not be attached with the challan file, it does not prove the fact that injuries of the accused persons were suppressed by the prosecution. If the Investigating Officer was not vigilant to conduct investigation properly, his inaction or irregularity in the investigation would not demolish the prosecution case, if otherwise, the offence against the accused persons stands proved in the light of evidence on the record. In support reliance can be placed upon a case titled as Syed Kabeer Hussain Shah v. the State PLD 1984 SC (AJK) 82.

Keeping in view the peculiar facts and circumstances of the case when the accused opened fire aiming and hitting six persons on vital parts of their bodies in a broad-daylight, the injuries on the person of two accused might be a reaction of angry mob who found before themselves three dead bodies and four severely injured persons. The presence of eye-witnesses was admitted who have no motive for false implication of the accused and their testimony was consistent and confirmatory with the circumstantial and medical evidence along with the recoveries of lethal weapons from the accused. The plea of self-defence of person or property was neither proved nor spelled out from the circumstances of the case. In these circumstances, it cannot be said that the accused persons received injuries during the incident in question which were suppressed. It is cardinal principle of criminal law that the mere fact that the injuries on the person of accused were not explained, would not bring the case within the ambit of self-defence. My aforesaid view stands fortified by Shabbir Ahmad's case 1997 PCr. LJ 1539 referred to by the learned counsel for the defence.

The next aspect of the case relates to motive. It has been stressed by the learned counsel for the defence that the motive of the occurrence is vague and fictitious because according to the prosecution the complainant party forbade the accused not to ramble here and there, which is not a motive of such a degree that could provoke the accused persons to launch a murderous attack upon the complainant party, therefore, the lesser punishment may be awarded to the accused-persons. In support of his contention, he cited PLJ 1997 SC (AJK) 335. Suffice to note that it is by now settled position of law that if a case is primarily based on ocular evidence, it is not necessary to prove motive, therefore, the absence or weakness of motive cannot be made ground for awarding lesser penalty. However, in the instant case, the motive, as alleged by the prosecution, has been proved through cogent and reliable evidence. In this context I am fortified by Ameer Khan's case 2002 PCr. LJ 886 (Lahore) and Ghaffar v. State and another 2002 PCr. LJ 1091 (Peshawar). The same view was affirmed in Abdul Rasheed's case 2001 PCr.LJ 524 the aforesaid view was reaffirmed in Muhammad Ilyas's case 2003 YLR 806.

So far as the authority referred to by the 'earned counsel for the defence is concerned, the facts of the aforesaid cases-law are distinguishable from the facts of the present case, therefore, do not help the case of accused-persons. It is needless to mention that occurrence took place in broad-daylight. The place of occurrence, the presence of accused party, the presence of complainant party, the instantaneous death of three persons at the spot and one later on in MDS Leepa, the injuries on the person of three P.Ws. and causing of injuries by deadly weapons is admitted on the part of defence. There is no suggestion on record on behalf of the defence with regard to the previous enmity between the parties, therefore, the chance of false accusation is quite remote in the instant case. In the present case, the record suggests that two eye-witnesses are independent witnesses and they have no motive to falsely charge the accused persons in substitution of real culprit. The testimony of the eye-witnesses is fully corroborated by sufficient confirmatory and supportive evidence. The medical evidence confirms the prosecution version. The motive and the recovery of lethal weapons at the instance of accused persons have been proved. Active participation and infliction of injuries have also been fully established. I am, therefore, inclined to hold that prosecution case is plausible and appeals to reason. In this manner, the accused were rightly adjudicated by the learned Additional District Qazi to be guilty of committing murder of four persons, on the other hand the findings of the learned Additional Sessions Judge for disbelieving the prosecution evidence is based on misapplication and misinterpretation of law because same cannot be discarded or disbelieved on facts, therefore, the reasoning given by the learned Additional Sessions Judge cannot be taken into consideration against the prosecution.

As far as the case of Abdul Qayyum and Aziz-ur-Rehman, accused persons, is concerned, it stands on different footings. The names of both accused persons were not mentioned in the written report Exh.P.A. lodged by Muhammad Iqbal, complainant. Furthermore, it was admitted by Abdul Shakoor (P.W.2) that he did not name Abdul Qayyum and Aziz-ur-Rehman as accused in his statement before the police recorded under section 161, Cr.P.C. The perusal of charge-sheet framed under section 242, Cr.P.C. against both the above mentioned accused persons reveals that neither the charge was specifically framed against them nor the particulars of alleged offence were explained to the accused so that they may be, able to know what was the charge against them, which they had to face in the trial and to defend themselves. It will be relevant to note that the examination of accused under section 342, Cr.P.C. does not dispense with the necessity of framing a charge under section 242, Cr.P.C. No weapon of offence was recovered from both of them and no place of occurrence was specified to their extent during the statement of Investigating Officer, therefore, the sentence already undergone by them shall meet the ends of justice.

It will not be out of place to mention here that if the evidence of prosecution witnesses is disbelieved regarding accused-respondents 4 and 5, the same can be believed in respect of respondents 1, 2 and 3. It is admitted position of law that a criminal Court has to sift the grains of truth from the chaff of falsehood; therefore, the testimony of prosecution witnesses can be relied upon against some accused while rejected against others. In this regard a case reported as Zahir Hussain Shah v. Shahnawaz Khan and 3 others 2000 SCR 123 can be cited, wherein the following principle was enunciated at page 139 of the report:--

64. On the above premises of reasoning, I agree with the view taken by learned Additional District Qazi to the extent of accused persons Sharafat, Muhammad Munir and Muhammad Alam which is maintained whereas the findings recorded by learned Additional Sessions Judge, based on surmises and conjectures, cannot be taken into consideration. Consequently, Abdul Qayyum and Aziz-ur-Rehman accused persons, shall be set at liberty, if not required in any other case. The reference is answered in the terms of indicted above.

H.B.T./23/Sh.C.(AJ&K) ????????????????????????????????????????????????????????????????????? Order accordingly.