1. ' The above captioned appeal and reference arise out of the same incident and judgment, therefore, these, have been consolidated and will be disposed of by this single judgment.
2. ' The facts forming the background of the instant appeal are that Muhammad Yasin, complainant, lodged a written report at Police Station -Pallandri on 4-3-1998 at 7-00 a.m. Alleging therein that he is discharging his duties as guard at the bungalow of Deputy Commissioner. Today at 6-30 a.m.
3. Muhammad Sarwar Khan informed him that the dead body of Mst. Afsar Jan was lying in the house of his brother Raj Muhammad, where the inhabitants of the village had come for condolence.
4. Aurangzeb, accused, also remained there for about one and half hour. Meanwhile Muhammad Haleem, a brother of the complainant, also went there and sat at a chair nearby the dead body.
5. Aurangzeb, accused, who had wrapped a Chadar, went out and after 4/5 minutes came back, along with Said Akbar, Ali Bahadar and Mushtaq Ahmad in furtherance -of their common intention to do away with his life. Aurangzeb fired three shots one after another with his pistol which hit on the right side of the chest of Muhammad Haleem, who in consequence of firing fell down and died spontaneously. Aurangzeb, accused, fled away from the spot. Raj Muhammad, Muhammad Hussain, Alam Hussain and Muhammad Sarwar witnessed the occurrence.
6. ' The motive behind the occurrence is stated to be that about 5/6 months prior, to the occurrence Aurangzeb launched an attack upon Muhammad Haleem with .7 MM rifle but Muhammad Haleem snatched away the rifle and produced it before the police, whereupon a case was registered against him and he was challaned before the Court. Moreover, Muhammad Saleem, brother of the complainant instituted a civil suit against Said Akbar but Aurangzeb was supporting Said Akbar, therefore, he was annoyed with him, on this account, Aurangzeb put his brother to death.
7. ' On this report a case under sections 302 and 109, A.P.C. Was registered by Muhammad Saleem, S.- I. (P.W.23) on 4-3-1998 at 7-00 a.m.
8. ' On 4-3-1998 after arriving at the spot, Muhammad Saleem S.-I. (P.W.23) prepared an inquest report Exh.P.H. And the injury form of the deceased Exh.P.1. On the same day 3 empties of pistol were taken into possession by him from the place of occurrence and secured vide recovery memo.
9. Exh.P.C.. In the presence of Muhammad Yasin (P.W.2) and Muhammad Shakeel (P.W.9).
10. ' After the post-mortem on 5-3-1998 the blood-stained clothing of the deceased trousers P.2, shirt P.3, coat P.4, vest P.5, boot P.6 and socks P.7 were taken into possession by Asad Naqvi, A.S.-I.
11. (P.W.13) vide recovery memo. Exh.P.D. Attested by Muhammad Yasin (P.W.2) and Muhammad Sarwar (P.W.3).
12. ' On 8-3-1998, the site plan Exh:P.E. Was prepared by Munshi Akbar Hussain Patwari (P.W.11).
13. ' On 20-4-1998 said Muhammad Saleem S.-I. Took into possession a File No,41/97 dated 25-4-1997 in the presence of Syed Mushtaq Hussain Shah, Nazir Sub-Judge Pallandri, (P.W.14) and Ghulam-ul- Haq Process-Server (P.W.15) vide recovery memo. Exh.P.D. (as the clothing of the deceased has already been marked as Exh.P.D. Therefore; this recovery memo. Is marked as Exh.P.DD.) which was given on the Supardnama of Altaf Qadir, Clerk of the Court of Sub-Judge (P. W.16) vide recovery memo. Exh.P.E. In the presence of aforesaid witnesses. On the same day, he took into possession a file of Civil Suit No' 21/98 titled Muhammad Saleem v. Mst. Hussan Jan vide recovery memo. Exh.P.F.
14. In the presence of aforementioned witnesses and the same was given on the Supardnama of Muhammad Khalil, Clerk (P.W.17) vide recovery, memo. Exh.P.G. Attested by the aforestated witnesses.
15. ' The accused was apprehended on 2-2-1999, who led to the recovery of .30 bore pistol P.1 on 11-2- 1999, which was secured by Sardar Gulfraz Khan, S.-I. Vide recovery memo. Exh.P.H. (as the inquest report has already been marked as Exh.P.H., therefore, this recovery memo. Is marked as Exh.P.HH attested by Raj Muhammad (P.W.4) and Muhammad Saleem (P.W.8).
16. ' It was reported by Chemical Examiner vide its report dated 17-3-1998 that the clothing of the deceased was stained with blood.
17. ' It was reported by Director, Forensic Science Laboratory Punjab vide its report dated 1-5-1999 that the three crime-empties were found to have been fired by the .30 bore pistol recovered from Aurangzeb, accused.
18. ' It was also reported by Serologist vide its report dated 27-5-1998 that the clothing of the deceased was found stained with human blood.
19. ' The post-mortem of the dead body of Muhammad Haleem, deceased, was performed on 5-3- 1998 by Dr. Gulfraz Ahmad C.M.O. Tehsil Headquarter Hospital Pallandri vide post-mortem report Exh.P.D. (as the two above recoveries have already been marked as Exhs.P.D. And P.DD. Therefore, this report is marked as Exh.P.D./1). He noticed the following injuries on the dead body of the deceased caused by fire-arm:--
(1) A round shape wound in diameter of 1 c.m. With reddish margin situated on right side of chest 8.5 c.m. Above and 4.5 c.m. Medial to right nipple. (Entrance wound).
(2) An oval shape wound 2 c.m. x 1 c.m. Situated over lateral of left chest 1.9 c.m. Lateral and 2 c.m.
20. Above to the left nipple. (Exit wound).
21. ' No blackening around the wound.
22. ' During the investigation accused Ali Bahadar, Mushtaq and Said Akbar were discharged and an offence under section 109, A.P.C. Was also deleted. The accused-appellant was challaned before District Criminal Court Pallandri on 13-2-1999. The accused during the examination under section 242, Cr.P.C. Pleaded not guilty and claimed the trial.
23. ' Muhammad Yasin (P.W.2), Muhammad Sarwar son of Sakhi Muhammad (P.W.3), Raj Muhammad (P.W.4), Alam Hussain (P.W.5), Muhammad Hussain (P.W.6), Muhammad Akram (P.W.7), Muhammad Saleem son of Sardar Khan (P.W.8), Muhammad Shakeel (P.W.9), Muhammad Sarwar son of Kala Khan (P. W.10), Munshi Akbar Hussain Patwari (P.W.11), Dr. Gulfraz Ahmad Khan (P.W.12), Asad Naqvi, A.S.-I (P.W.13), Mushtaq Hussain Shah, Nazir Sub-Judge Pallandri (P.W.14), Ghulam-ul- Haq, Process-Server (P.W.15), Altaf Qadir, Clerk (P.W. 16), Muhammad Khalil , Clerk (I W . 17), Muhammad Habib, Head Constable Police (P. W.18), Abdul Rasheed, Constable Police No,1277 (P.W.19), Muhammad Saleem, Sub-Inspector Police S.H.O. (P.W.23) and Sardar Gulfraz Khan, D.S.P.
24. Were produced in support of the prosecution case, whereas Jannat Hussain, S.-I. Police (P.W.20), Mirza Tufail Hussain, D.S.P. (P.W.21) and Ch. Muhammad. Afzal (P.W.22) were given up by the prosecution. During the purgation, the prosecution witnesses were found Adil'.
25. ' After completion of the prosecution evidence, an opportunity was provided to the accused- appellant to furnish his explanation in respect of prosecution evidence adduced against him, during his examination under section 342, Cr.P.C. The accused pleaded that false evidence was produced against him on account of enmity and he is innocent. Nazim Hussain (D.W.1) and Zamurd Gull (D.W.2) were produced in defence.
26. ' After conclusion of the trial, the District Criminal Court, Sudhnoti, Pallandri awarded sentence of Qisas to Aurangzeb, accused, under section 302-A, A.P.C, along with one year rigorous imprisonment under section 13/20/65, Arms Act with the benefit of section 382-B, Cr.P.C. Vide its judgment/order dated 29-10-2003. Feeling aggrieved and dissatisfied, the instant appeal has been lodged by Aurangzeb, accused-appellant, whereas a reference has also been made by the District Criminal Court Pallandri for confirmation of the death sentence as required by section 338-D, A.P.C., which are the subject-matter of-this judgment.
27. ' Sardar Abdul Hamid Khan, Advocate, the learned counsel for the accused-appellant has argued with vehemence that the appellant has been falsely implicated in the case due to the past enmity and litigation. The learned counsel also contended that the evidence of prosecution witnesses being inconsistent and contradictory could not be relied upon. The learned counsel submitted that the site plan is fabricated and substituted for the actual scene of occurrence just to make the prosecution case heinous. The learned counsel pointed out that the non-recovery of blood-stained earth and the bullet from the place of occurrence totally belies the ocular version. The learned counsel further maintained that the medical evidence contradicts the prosecution version about the distance between the assailant and the deceased. It further negates the story of three bullet injuries and holes on the clothing of the deceased and also the oral version therefore, evidence of prosecution witnesses is not trustworthy rather it is a strong mitigating circumstance, which warrant acquittal/lesser punishment. The learned counsel further maintained that manner of occurrence is not convincing and actual story about the death of the deceased is still shrouded in mystery. The learned counsel pressed into service the submission that no evidence was produced about the recovery of pistol, in this manner the question put to the accused during his examination under section 342, Cr.P.C. About the recovery of the pistol is illegal and against the record. The learned counsel laid much stress upon the point that the trial Court has misread the statement of Investigating Officer and other important pieces of prosecution evidence, therefore, the impugned judgment is liable to be set aside. The learned counsel strenuously argued that the re-examination of Muhammad Hussain (P.W.6) has been wrongly done by the trial Court which cannot be read against the accused-appellant. The learned counsel also submitted that the discharge of three other accused persons namely Ali Bahadar, Said Akbar and Mushtaq is clear indication of a doubtful case against the appellant but the trial Court did not consider the aforesaid aspect of the case in favor of the accused. The learned counsel finally contended that the trial Court misconstrued the law regarding infliction of capital punishment of Qisas, therefore, impugned judgment is not sustainable. In support of his contentions, the learned counsel cited the following authorities:-- ' (1) PLD 1989 Sh.C. (AJK) 1; (2) PLD 1991 (AJK) 31; (3) 1992 PCr.LJ 597; (4) 1992 PCr.LJ 597=610; (5)1.994 SCR 275.
28. ' Sardar Nisar Ahmad, Advocate, the learned counsel for the complainant controverted the arguments raised by the learned counsel for the accused-appellant and submitted that the accused fled away from the scene of occurrence and remained in absconsion till 2-2-1999 when he was arrested, which proves the involvement of the accused with the commission of offence. The learned counsel zealously argued that the prosecution story is: natural and convincing, which is supported by four eye-witnesses. The learned counsel pointed out that the ocular version has been fully corroborated by the sufficient corroboratory and confirmatory evidence. He pointed out that the weapon of offence of .30 bore pistol has been recovered at the instance of the accused, which has been proved through the statement of Sardar Gulfraz Ahmad Khan, D.S.P. P.W. The learned counsel submitted that a careful perusal of site plan and post-mortem report fully corroborates the distance between the assailant and the victim. The learned counsel further maintained that at the time of occurrence the deceased was wearing winter clothing like coat, therefore, his blood. Did not fall down upon the earth, thus, the blood-stained clay could not be recovered. However, according to him, it has been proved by Chemical Examiner and the Serologist that the clothing of the, deceased was. Stained with human blood. The learned counsel laid great stress upon the point that the motive of the murder has been alleged and fully proved by the prosecution, which is also supportive evidence against the accused. The learned counsel contended that the defence has cross-examined at length the portion of reexamination of Muhammad Hussain (P.W.6), therefore, no illegality has been committed by the trial Court, however, for the sake of argument if the aforesaid statement is brushed away even then the three eye-witnesses have fully proved the prosecution tale. The learned counsel maintained that an explanation has been sought from the accused about the recovery of the weapon of offence during his statement recorded under section 342, Cr.P.C. Therefore, the recovery evidence can be relied upon. The learned counsel pointed out that the pistol P.1, the weapon of offence, could not be shown to Raj Muhammad (P.W.4) and Muhammad Saleem (P.W.8), the recovery witnesses because a separate challan under section 13/20/65, Arms Act was filed against the accused wherein the statements of aforementioned witnesses were recorded but later on the case was annexed with the challan by the trial Court vide order, dated 20-7-2000. The learned counsel pressed into service the submission that the prosecution story has been fully proved by the ocular version as well as by sufficient corroboratory evidence, therefore, the impugned judgment has, been recorded in a, legal fashion which does not require any interference by this Court. The learned counsel finally submitted that the offence of murder has been proved, therefore, Qisas being a normal sentence of murder may be maintained.
29. The learned counsel referred to me the following case-law in support of his arguments:-- ' (1) 1993 PCr.LJ 2158; (2) 2000 PCr.LJ Sh.C. (AJ&K) 527; (3) 2000 PCr.LJ 1484; (4) 2002 YLR 1932; (5)
30. PLD 2003 SC 583; (6) 2003 YLR 2572; (7) 2003 YLR ,166.
31. ' Mr. Zaheer Babar Chughtai, the learned P.P. Appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the complainant.
32. ' I have given my dispassionate thought to the arguments addressed at Bar and perused the record with care. The prosecution case primarily rests upon the ocular version, therefore, let me first deal with the eye-witnesses account. F.I.R. In the case was promptly lodged in the early hours of morning and the complainant narrated the whole story, A which was told to him by Muhammad Sarwar son of Sakhi Muhammad (P.W . 3).
33. ' Muhammad Sarwar (P.W. 3) has deposed that on 8-45 p.m. The accused, who was sitting nearby the dead body along with the other persons, went out of the room, who after 3/4 minutes entered into the room and fired three shots upon the deceased with his pistol. He further stated that the occurrence was witnessed by Raj Muhammad (P.W.4), Muhammad Hussain (P.W.6), Khadim Hussain and by other 8/9 persons. It transpires from the perusal of above-stated deposition that the defence did not challenge the statement of Muhammad Hussain (P.W.6) in cross-examination on the major part of the occurrence i,e, the fact of firing shots by the accused upon the deceased and only a suggestion was put to him, which was refuted by the P.W. Therefore, the statement of the aforestated witness shall be deemed to have been admitted by the defence. 2004 YLR 1663.
34. ' Raj Muhammad (P.W.4) stated that on 3-3-1998 at about 8-45 p.m. He along with other persons was sitting near the dead body of Mst. Afsar Jan whereby the accused and the deceased were also present there. After half an hour the accused went out. When he came back, he fired three shots upon the deceased and fled away. He further deposed that Muhammad Sarwar (P.W.3) asked him to inform Muhammad Yasin, the brother of the deceased for reporting the matter to the police.
35. According to him, the occurrence was witnessed by Muhammad Sarwar (P.W.3), Alam Hussain (P.W.5), Muhammad Hussain (P.W.6), Muhammad Latif, Sher, Shamraiz, Muhammad Tahir and Muhammad Shafique. The learned counsel raised an objection that Raj Muhammad P.W. Has admitted that he does not know anything about the occurrence, therefore, his evidence is not reliable. The argument of the learned counsel is not tenable because the assertion of the aforementioned witness about his knowledge deals with the factum of post-mortem and not the occurrence. It is celebrated principle of criminal jurisprudence that the statement of a witness should not be considered in isolation and whole of it should be taken into consideration. 2000 PCr.LJ 1484.
36. ' Alam Hussain (P.W.5) testified that he along with other persons was present in the house of Raj Muhammad to condole his sister's death where the accused and the deceased were also sitting.
37. On 3-3-1998 at about 8-45 p.m. Aurangzeb, accused went out of the room and came back after 3/4 minutes. He fired three shots, which hit Muhammad Haleem, who fell down upon the earth and died spontaneously. The occurrence was witnessed by Muhammad Sarwar, Raj Muhammad and Muhammad Hussain along with other 5/10 persons.
38. ' Muhammad Hussain (P.W.6) stated before the trial Court that on 3-3-1998, he along with other persons went to the house of Raj Muhammad for lamentation of his sister's death where 10 persons were present including the accused and deceased. The accused went out of the room who came back after some minutes and started firing upon Haleem, which hit him and he fell down from the chair. It will be relevant to point out that in examination-in-chief, the P.W. Did not nominate the accused but during his re-examination he explained that the shots were fired by Aurangzeb upon Haleem deceased. The trial Court also allowed the defence to cross-examine the P.W. After his reexamination. For the sake of argument, if the statement of Muhammad Hussain P.W. Is ignored as an eye-witness even though it provides strong corroboration to the ocular version about the place of occurrence, the presence of the deceased, and the accused and the death of the deceased by firing of a deadly weapon. If the above-stated deposition is totally rejected even otherwise the prosecution story stands supported, by three independent eye-witnesses, who are unanimous on the point that the deceased Muhammad Haleem was put to death by the shot of 30 bore pistol fired by Aurangzeb, accused-appellant, which hit him, who fell down and died spontaneously. The presence of eye-witnesses at the time of occurrence is natural who made consistent statements in line with each other supporting on all material points about the place of occurrence, time of occurrence and manner of occurrence. In this manner the prosecution has successfully discharged its onus. The eye-witnesses are independent persons, who have no relation with the complainant or the deceased and have no such animosity to falsely implicate the accused- appellant in a murder case in place of some other culprit; therefore, their testimony being natural, convincing and truthful can be relied upon without any further corroboration. However, 'as, matter of prudence the Court may insist upon some corroborative or confirmatory evidence but in the instant case the ocular version has been fully corroborated by the sufficient supportive and confirmatory evidence along with the evidence of motive.
39. ' Sardar Gulfraz Ahmed Khan, D.S.P. (P.W.) has categorically stated that he recovered a .30 bore pistol at the instance of the accused. Although Raj Muhammad (P.W.4) did not state about the recovery of pistol in his examination-in-chief but in cross-examination he has fully explained that the pistol was recovered at the instance of the accused from his house. On this account, the evidence of Raj Muhammad coupled with the evidence of Gulfraz Ahmed Khan, D.S.P. Is quite sufficient to prove the factum of recovery of .30 bore pistol P.1. It will not be out of place to mention here that the evidence of Gulfraz Ahmd, D.S.P, cannot be brushed away on the mere ground that the statement of aforesaid witness being police official is-not worthy of any credence. The police officials are also as good witnesses as other witnesses therefore, the fact that he is a police official would not be sufficient to reject his testimony. On the contrary, the defence failed to bring on record anything to prove motivation for making a false testimony. In this respect, the reference can be made to a case titled Muhammad Asif v. The State 2004 PCr.LJ 890; wherein the following dogma was enunciated by the apex Court:-- ' "The law now stands settled that the police witnesses are as good witnesses as any other witnesses, especially so when no enmity or motive on the part of the police has been shown by defence for false involvement of the accused."
40. ' In such state of affairs, the recovery of .30 bore pistol P.1, a weapon of offence has been proved by the prosecution. The ocular version is further corroborated by the recovery of blood-stained clothes of the deceased, the evidence of Doctor Gulfraz Ahmad Khan (P. W.12) who conducted the post-mortem of the deceased and deposed that the deceased was killed by a .30 bore pistol fire, which resulted into death of deceased instantaneously. The reports of the Chemical Examiner, the Serologist and the Director Forensic Science Laboratory are also in nature of supportive evidence of the ocular version. The defence while cross-examining the prosecution witnesses has not seriously disputed the place of occurrence. It has been stated in clear word by the eyewitnesses that the occurrence took place in the house of Raj Muhammad where the eye-witnesses, deceased and the accused were sitting together for condolence of the death of his sister Mst. Afsar Jan. The defence tried to prove that the occurrence took place in the dark hours of night but all the eye-witnesses are unanimous on the point that the occurrence took place in the room where a gas lamp was lightening. According to the medical evidence the distance between the assailant and the victim has been described 9 feet whereas according to the site plan this distance has been shown almost 16 feet. The learned counsel for the appellant vehemently argued that Dr. Gulfraz Ahmad has deposed' that the blackening was found on injury No,1 whereas according to post-mortem report the distance between assailant and victim has been shown three feet to nine feet but according to medical jurisprudence the blackening is found if a fire-arm- like revolver or pistol is discharged from a distance of two feet, therefore, the medical evidence does not corroborate the ocular version of the eye-witnesses. It may be stated here that all the eye-witnesses.Have deposed that the accused fired a shot from the door of the room, which according to the site plan Exh.P.E. Is situated at the distance of 16 feet from the place of occurrence where the deceased was sitting whereby according to post-mortem report such 'distance has been shown from one yard to three yards and it has also been recorded that no blackening was seen around the, holes of the clothing of the deceased, therefore, a casual assertion of doctor during cross-examination to the extent that injury No,1 had some blackening cannot be made basis to hold that the medical evidence is totally in conflict with the ocular version and the report of the post-mortem has to be relied upon which was recorded soon after the autopsy. It is necessary to mention that this is a well-settled position of law that if a case is based on ocular evidence the same cannot be rejected merely because there was some variation between the prosecution witnesses and the medical evidence on the point of distance between the killer and the accused at the time of occurrence. In this regard, I am fortified by a case reported as Abdul Rasheed and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524. It will be important to note here that the distance of firing described in the postmortem report is not always conclusive but the same is tentative. The eye-witnesses have explained their distance from the assailant and the victim. It is natural that simple villagers are not supposed to explain distance in minute detail like feet and yards. It is settled principle of law of evidence that the minor infirmities and discrepancies do not injure the main story of the prosecution if the ocular version is found truthful and trustworthy on its material particulars rather such minor contradictions have to be ignored.
41. ' It will be important to observe that the expert evidence, may it be medical or that of other expert, is a type of corroboratory or confirmatory of direct or other circumstantial evidence, but if the ocular account as in the instant case which is definitely cogent and reliable, the corroboratory evidence is not of much significance. In any case, it cannot outweigh the direct evidence. My aforesaid view finds support from a case titled Muhammad Ajaib v. Mehboob Khan and another 2000 PCr.LJ 484.
42. ' The motive is specifically pleaded in the F.I.R. And has been deposed at trial by the complainant and corroborated by other prosecution witnesses, thus, it stands fully proved. It has been amply established by the prosecution that the parties were involved in civil as well as in criminal litigation and some days prior to the occurrence an altercation took place between the accused, the deceased and his brother Muhammad Saleem. The deceased and his brother snatched away a .7 MM rifle from the accused whereupon a case was registered against the accused and he was sentenced to fine Rs,500 These facts have been proved by the evidence of Muhammad Saleem, brother of the deceased and recovery memos. Exh. P. D. , Exh. P. E. , Exh. P. F. And Exh. P . G. Testified by Mushtaq Hussain Shah, Nazir, Sub-Judge, Pallandri (P.W.14), Ghulam-ul-Haq, Process-Server (P.W.15), Altaf Qadir, Clerk (P.W.16) and Muhammad Khalil, Clerk (P.W.17). Therefore, the motive in the instant case has become an independent piece of evidence to connect the accused with the crime.
43. ' The learned counsel has seriously criticized the statement of Sardar Muhammad Saleem, A.S.-I.
44. Police and argued that according to the prosecution case three empties were recovered from the spot whereas according to Sardar Muhammad Saleem P.W. Five empties were taken into possession by him, therefore, the evidence of the recovery of empties cannot be taken into consideration. The perusal of recovery memo. Exh.P.C. Shows that three empties were taken into possession by the police from the place of occurrence. The aforesaid recovery memo. Has been fully supported by Muhammad Yasin (P.W.2) and Muhammad Shakeel (P.W.9). The evidence of Muhammad Saleem P.W. Was recorded after a span of four years, therefore, the casual assertion of said P.W. Cannot destroy the recovery evidence.
45. ' The learned counsel laid much emphasis upon the point that according to the prosecution three holes were found upon the bloodstained clothing of the deceased whereas according to the medical evidence only one shot of pistol was fired, therefore, the evidence of recovery of clothing and statement of Syed Asad Naqvi P.W. Makes the prosecution case doubtful. Suffice to note that it has been proved on record that the deceased was wearing coat, shirt, trousers, shoes and socks at the time of occurrence. According to the post-mortem report, the bullet travelled from the right side of the chest towards the left nipple of the chest, therefore, the existence of three holes instead of two is quite possible on the clothing of the deceased because the bullet might have travelled through. In my view, this discrepancy could not be fatal to the prosecution case.
46. ' The contention of the learned counsel does not appear to be well-founded that non-recovery of blood-stained clay has made the prosecution case suspicious and doubtful. It may be stated here that a bullet and three empties have been recovered from the place of occurrence. The blood- stained clothing of the deceased has also been taken into possession. It is also on the record that at the time of occurrence the deceased was wearing a coat, shirt and vest, therefore, in presence of thick clothing, it is possible that the blood might have not been fallen down upon the earth. In such state of affairs, the recovery of blood-stained clay is not sufficient to destroy the prosecution story which otherwise has been proved by the trustworthy ocular version supported by other sufficient corroboratory and confirmatory evidence. In this context, therefore, can be made to a case titled as Falak Sher v. The State 2003 YLR 2572.
47. ' It has also been proved on the record that the accused, soon after the occurrence fled away. From the place of occurrence and was apprehended on 2-2-1999. Therefore, his unexplained absconsion for about a year also provides sufficient corroboration of the ocular account. In this respect, I am fortified by a case reported as Habib-ur-Rehman v. State 1992 SCMR 1625.
48. ' I have also considered the defence version. The defence has not taken any specific version except a plain denial from the occurrence.
49. ' When both the prosecution and the defence versions are considered in juxta position, the prosecution version seems to be more natural, probable and trustful.
50. ' The learned counsel pressed into service the submission that the trial Court has not considered the fact that the Investigating Officer discharged three accused persons Ali Bahadar, Said Akbar and Mushtaq which is a clear indication of a doubtful case against the appellant and a strong mitigating circumstance for acquittal and lesser punishment. It needs to be emphasized that the eye-witnesses have not deposed anything about their involvement, therefore, their statements cannot be held fatal to the prosecution story. The mentioning of their names in the F.I.R. By the complainant cannot destroy the veracity of the eye-witnesses. It is the celebrated principle of law that in a criminal case the Court has to sift the grain from the chaff of falsehood; therefore, the testimony of prosecution witnesses can be disbelieved against some accused persons but it can also be relied upon against the others, thus, I find no substance in the argument, which is repelled.
51. 200,1 PCr.LJ 524.
52. ' The authorities cited by the learned counsel for the parties are distinguishable and needless to say that an authority in a criminal case is relevant only to the case in which the same is given. For instance, in Muhammad Bashir's case 1992 PCr.LJ 597, a solitary minor female witness was produced in support of the prosecution case but her name was not given in the F.I.R. Whereas an injured P.W. Was alone eyewitness of second murder and evidence of other eye-witnesses was not found free from doubt. The eye-witnesses were also found admittedly inimical towards accused and no corroboratory evidence was available in the case, therefore, the sentence of Qisas was not imposed.
53. ' In Ghazanfar Ali's case PLD 1989 Sh.C. (AJK) 1, the eyewitnesses were not only related to the complainant party but extremely hostile to the accused and they contradicted one another on all material particulars of the case, therefore, the accused was acquitted.
54. ' In Muhammad Younis's case PLD 1991 (AJK) 31, it was opined that if incriminating evidence is not put to accused during examination under section 342, Cr.P.C. Such evidence cannot be considered against accused, therefore, the authorities cited by the learned counsel for the appellant do not render any help to him.
55. ' The nutshell of the above discussing is that ocular account as well as confirmatory evidence is sufficient to prove the guilt against the accused-appellant. The prosecution has proved its case beyond any shadow of doubt and the accused-appellant has been found guilty of the offence of murder of deceased Muhammad Haleem as recorded by the trial Court. The eye-witnesses were found `Adir in purgation according to the standard and requirement of evidence needed in the case of Qisas. I also do not find any mitigating circumstance for lesser punishment to Aurangzeb accused because the Qisas' is normal sentence of murder to meet the ends of justice, however, one year rigorous imprisonment and the imposition of fine under section 13/20/65; Arms Act is unnecessary and uncalled for which is set aside because neither the charge was framed in offence under section 13/20/65, Arms Act nor any explanation of the accused was sought about the commission of aforesaid offence during his statement under section 342, Cr.P.C., therefore, the judgment of the trial Court is modified to this extent. My conclusion, therefore, is that the reference made by District Criminal Court Sudhnoti/Pallandri is accepted and the sentences of `Qisas' awarded to Aurangzeb, accused-appellant, vide judgment; dated 29-10-2003 is confirmed.
56. Consequently, the appeal fails.