' Through this application, the petitioner-accused seeks quashment of FIR Nos.10/2014 dated 4.3.2014 which was registered against- the accused-petitioner and 6 other co-accused-persons (not before me) in offences under Sections 10, 16 & 19, ZHA at Police - Station Fatehpur on the complaint of Muhammad Waqar, Complainant-Respondent No,
3. After registration of the case, the accused-petitioner moved instant application for quashment of F.I.R which is the subject matter of this judgment.
' Ch. Muhammad Ilyfis, the learned Counsel for the petitioner-accused vehemently contended that a fictitious F.I.R has been registered on the complaint of Muhammad Waqar wherein he alleged that Mst. Sobia Yusuf is his wedded wife, who was forcibly abducted by petitioner and other co- accused-persons, whereas Mst. Sobia Yusuf has filed a suit for jactitation of marriage before Judge Family Court Kotli alleging therein that she never solemnized Nikah with Respondent No, 3; therefore, the claim of Respondent No, 3 has clearly been negated by Mst. Sobia Yusuf and in presence of such like situation, the F.I.R is liable to be quashed. The learned Counsel finally prayed that continuation of proceedings under such F.I.R would defeat the ends of justice; therefore, the aforementioned F.I.R may be quashed.
' Conversely, Sardar Muhammad Latif Khan, the learned Counsel for complainant-Respondent No, 3 submitted that the main accused-persons in the instant FIR have fled away whereas the petitioner is a co-accused and besides petitioner there are six caucused persons nominated in the F.I.R. The learned Counsel further contended that if the F.I.R is quashed, then the case of main accused- persons shall affect; therefore; the application be dismissed.
' I have heard, the arguments of. The learned Counsel for the accuse.; petitioner as well as complainant and gone through the record of the case.
' It is pertinent to note here that the powers under Section 561- A, Cr.P.C. Have been intended to prevent abuse of the process of the Court but not to stifle the prosecution and this Court may quash proceedings which do not contain any definite or clear allegation or the allegation leveled does not disclose the commission of any offence, otherwise the quashment of F.I.R or proceedings at any early stage where no evidence has been recorded would give an impression of stifling of criminal proceedings and if the allegations leveled in the case do not disclose any offence, it is for the trial Court to consider the evidence and determine whether the allegations are true or false; therefore, the F.I.R cannot.Be quashed simply on the ground that the accused has claimed that the allegations leveled against him are false. The aforesaid view finds support from a case reported as Haji Karim Bakhsh and another v. The State (PLD 1982 Peshawar 20), wherein the following principle was enunciated:-- "Thus, I find that the test laid down for interference in pending criminal proceedings is that if the proceedings are allowed to be continued, it would result in grave miscarriage of justice and there would be no other provision of law by which the aggrieved party would seek relief. The inherent jurisdiction of the .High Court should not normally be invoked where another remedy is available.
The inherent powers ought to be exercised only to prevent abuse of the process of the Court and in order to advance the interest of justice. The High Court may quash proceedings which do not contain any definite or clear accusation or the accusation made does not disclose the commission of any offence, otherwise the quashment of proceedings at an early stage where no evidence has been recorded would give an impression of stifling of criminal proceedings. If the allegations made in the case do not disclose any offence, it is for the trial Court.To weigh the evidence and determine whether the allegations are true or false. The proceedings cannot be quashed simply for the 'reason that the accused has claimed that the allegations against him are false and fantastic.-The test laid down also is that the allegations. In the complaint taken at their face-value and accepted in their entirety should not constitute an offence as alleged."
' Therefore, in order to consider the question of quashing an F.I.R or criminal proceeding at the preliminary stage when the evidence is yet to come, the Court -has to take the allegations against the accused at their face value and accept the same in their entirety and then see if they do not constitute any offence for which a prosecution be warranted; the Court in its limited jurisdiction under Section 561-A, Cr.P.C. Will not embark upon an enquiry to ascertain the innocence or otherwise of the accused and if the allegations disclose an offence, the case cannot be quashed merely because the accused denies the allegations and asserts that he has a good defense, when his defense is yet to come. Thus, -ordinarily the guilt or innocence of an accused depends on the totality of the facts and circumstances revealed during the trial. The aforesaid view finds support from .a case titled as Yagoob and another v. The State,and another (1983 PCr.LJ 1111), it was observed as under:-- "Contention No, 1 is of utmost importance inasmuch as, quashment proceedings at interlocutory stage are usually not entertained where no evidence has yet been examined or recorded in a case.
The learned counsel for the State has referred to the, Supreme Court decision in Raja Haq Nawaz v.
Muhammad Afzal and others (1) where it was observed as under:-- "Quashment of proceedings at so early a stage gives an unfortunate impression of stifling of criminal prosecutions by exercise of an extraordinary power which is given for the dispensation of complete justice in the form provided by law. It is necessary that these cases should be examined further to ensure that the Course of even handed justice has not been prejudiced."
' He has also referred to the decision of the Supreme Court in Dianchand and others v. The State (2). The decision was of petition for Special Leave to Appeal No, K-67/67 in the case which was initiated on a private complaint under Section 380, P.P.C. And the petitioner had applied to the High Court under Section 561-A, Cr.P.C. For quashment of the charge on various grounds to the effect that the prosecution case against him was entirely false. The prayer was refused on the view that it was premature at that stage to make an assessment of the merits in the prosecution case. The application for Special Leave to appeal was made and the Supreme Court observed that no opinion could be expressed at that stage for determination of the guilt or innocence of the petitioner which would eventually depend on the totality of facts and circumstances revealed during the trial, and further that admittedly such a stage had not yet been reached and, therefore, the High Court has rightly rejected the application for quashment of proceedings."
I am also cognizant of the fact than the proceedings may be quashed if it is. Satisfied from other cogent material that the prosecution was launched for improper motives, merely to harass the accused, or that its continuance would be an abuse of the process of the Court or for other reasons which impel the Court to conclude that it would not be in the interest of justice to allow the prosecution to continue, but it will not be out of place to mention here that the Courts may dismiss the petition where the accused moves the Court under Section 561-A, Cr.P.C. For quashment of the criminal proceedings pending before the trial Court after presentation of the challan in the trial Court and the evidence is not recorded and even if no case is made out on the basis of material collected by the investigation. The aforementioned view is fortified from a judgment reported as Khurshid Ahmad & others v. The State (1983 PCr.LJ 1530), wherein it was laid down: "The challan in this case was filed in Court and before the charge could be framed petitioners moved an application under Section 249-A, Cr.P.C. For acquitting them. The learned Magistrate rejected that application because no evidence in the case had been recorded till then. It is a common ground that no evidence in the case has been recorded nor any statement of the accused-petitioners under Section 242, Cr.P.C. Had been recorded by the trial Court. Even if no case is made out on the basis of material collected by the investigation this Court cannot sit in judgment to quash proceedings. Assuming the facts stated in the F.I.R and statements recorded under Section 161, Cr.P.C. To be correct it cannot be said that the charge against the accused- petitioners is groundless or there is no probability of the petitioners being convicted of any offence.
The question whether no penal offence has been made out can be determined after the evidence is adduced by the parties, and it is for the trial Court to determine all these questions. Delay in registration of the case has not always been fatal and whether the explanation is satisfactory or not the trial Court has yet to go into it. The extraordinary power of the High Court under Section 561- A, Cr.P.C. Cannot be allowed to be made instrument in the hands of the accused to short circuit the prosecution. The learned trial Magistrate rightly rejected the application under Section 249-A, Cr.P.C. Because it was premature. As at present, I do not find any justification to quash the proceedings before the trial Court. Therefore, this' application is dismissed."
' The same view was expressed in another case reported as Tahir-ulIslam v. The State & others (KLR 1984 Criminal cases 12), in which it was held as under: ' Additionally, the petitioner has merely been summoned by the trial Court. Neither his evidence nor statement under Section 242, Code of Criminal Procedure, has been recorded and, . Therefore, this Court cannot sit in judgment to quash the proceedings at this premature stage. The power conferred on this Court under Section 561-A, Cr.P.C, cannot be invoked to obstruct or divert the ordinary. Course of criminal procedure. However, if in the course of evidence recorded during the proceedings it transpires that the matter raises a question of civil liability simpliciter and the proceedings before the Criminal Court are abuse of the process of Court, the petitioner shall be at liberty to approach the trial Court afresh for quashment of the proceedings under Section 249-A, Cr.P.C.
' In view of the above, I find no merit in the application and the same is hereby dismissed."
' Therefore, in the light of above quoted dictums, the F.I.R cannot be quashed especially in presence of specific allegations leveled in the F.I.R.
It will not be out of place to mention here that the allegations leveled against the petitioner and co-accused-persons require to be tested in the light of evidence available to the trial Court and that stage is yet to come; therefore, without allowing the prosecution to produce evidence, it will not be proper to accept the petition filed Under Section 561-A, Cr.P.C. And quash the F.I.R. It is pertinent to mention that a copy of the judgment and decree of the Family Court Kotli dated 25.10.2014 has been placed before the Court by the learned Counsel for the petitioner wherefrom it is evident that a decree for jactitation of marriage of one Sobia Yusuf with Respondent No, 3 has been passed. Suffice it to say that Sobia is not party in the instant ''petition before this Court, hence, need not to comment. However, the accused-petitioner shall be at liberty to file an application under Section 249-A, Cr.P.C. Before the trial Court at proper time, if he feels so advised.
' Consequently, in the light of what has been discussed above, I am not persuaded to accept this petition, which is hereby dismissed. Order announced.
Petition dismissed. F'LJ 2017 Sh.C. (AJ&K) 19 Present: GHULAM MUSTAFA MUGHAL, C.J. & MUHAMMAD MUSHTAQ CHAUDHARY, J.
STATE through Police Station Civil Secretariat Tehsil & District Muzaffarabad and others--Petitioners versus AZHAR ELAHI and others--Respondents Reference No, 77 of 2011 and Crl. As. No, 80, 88 of 2011 and 186 of 2012, decided on 20.2.2014.
Azad Penal Code-- ----Ss. 302 & 337(F)(1)(2)--Conviction and sentence--Murder Reference--Appreciation of evidence--Celebrated principle of law is that portion of evidence which has not been challenged by defence that would be taken to have been admitted--Accused has expectancy of life because he is a young man, therefore, circumstances of case and time consumed in trial and appeal, lesser punishment may be awarded in circumstances of this case is also devoid of any force-- Superior Courts have laid down some rules for extending benefit of expectancy of life--Mere claim of expectancy of life as ground for awarding lesser punishment has not. Been considered by Courts even in case where considerable time has been consumed in trial or in disposal of appeal by appellate Court--No such circumstance exists on basis of which benefit of expectance of life can be extended to a person who has brutally murdered a young man who was armless at time of occurrence--There were no mitigating circumstances in this--Deceased was empty handed and proved record--Even prosecution injured witnesses were also armless and it is also established that accused have taken undue benefit of situation, therefore, they do not deserve' any leniency in their respective punishments--In present case, prosecution has not suppressed injuries rather they have got examined accused-- Their medical report is part of challan-Injuries are not of such nature which could have been inflicted by using of some weapon and opinion of doctor is also to same effect--Trial Court has appreciated evidence to extent of these accused minutely and its conclusion is perfectly justified on basis of available evidence--Appeals were dismissed. [Pp. 30, 31 & 32] A, B, C, D, E, F 1999 SCMR 1190 & 2001 SCMR 84, ref.
Raja Gull Majeed Khan, Advocate for Accused-Appellants Mr. Saclaqat Hussain Raja, Advocate for Complainant. Mr. Muhammad Parvez Mughal, AAG for State. Date of hearing: 20.2.2014.
' Ghulam Mustafa Mughal, C.J.--The captioned appeals as well as reference arise out of the same judgment, hence, were heard together and are decided as such.
' Precise facts of the case are that Jahanzeb Khan 5/0. Haji Orangzeb Khan, complainant herein, made a written report at Police Station Civil Secretariat Muzafarabad on 02.05.2010, stating therein that he is resident of village Upper Chatter. Yesterday (01.05.2010) accused Shafqat Elahi, Mazhar Elahi, Azhar Elahi sent a message to his brother Babar Khan that there is a dispute between them over a piece of land and as they want to construct a house on the disputed land, they asked his brother to come to their house situated at Uper Chatter on 02.05.2010 so that the dispute could be resolved. Today (02.05.2010) at 10:00 a.m. My brother Babar Khan went to the Home of Shaffqat Elahi on his message where Shafqat Elahi, Mazhar Elahi and Azhar Elahi were digging the land and were fixing a tent and ' thorn wire on the land. Babar Khan restrained them from doing so which resulted into bitterness. Azhar Elahi and Mazhar Elahi caught hold Babar and dragged him towards the shelter of Shafqat Elahi, Babar Khan raised hue and cry whereupon Shafqat Elahi in whose hand thera was a knife started indiscriminate attacks on Babar Khan with that knife, which hit him at the right side of his chest and back. On listening the outcry, Abrar reached at the spot and tried to rescue his brother. The accused were armed with knives. Azhar Elahi injured Abrar with knife on the chest. Abid S/O Adalat Khan also stood injured while rescuing Babar Khan. The occurrence has been witnessed by Abid, Abrar, Orangzed, Aftab Akbar Muhammad Iran and other persons of the locality. It is also submitted that there were also 3.4 unknown persons with the 'accused. It is further submitted that the occurrence was preplanned.
' On this report FIR No, 39/10 was registered at Police 'Station Civil Secretariat Muzaffarabad on 02.05.2010 at 11:10 am in the offences under Sections 324/337 and 34 PC. Injured Babar succumbed to the injuries and died whereupon Section 302 APC was added. The police started investigation and during investigation recovered weapon of offence/knife on the pointation of Shafqat Elahi and Sections 1'3/20/65 Arms Act were also added. The injured Abrar and Abid were also sent on medical treatment and after receiving their medical report Sections 337/A(I) and 337/F(1)(2) APC were added. After necessary investigation the police submitted report under Section 173, Cr.P.C.
Before the District Criminal Court Muzaffarabad on 12.06.2010. The challan was subsequently entrusted to Additional District Court of Criminal Jurisdiction Muzaffarabad for hearing and disposal. The learned trial Court recorded statements of the accused under Section 242, Cr.P.C. On 07.07.2010. They pleaded not guilty whereupon the prosecution was directed to produce evidence in support of the charge. The prosecution in support of its version got recorded the statements of Shahpal Khan, ASI, Jahanzeb Khan, Abrar Khan, Abid Khan, Aftab Akbar, Irfan Gull, Amex Khalid, Dolat Khan, M. Ishfaq Mughal, Shehzad Ahmed, Sheraz Ahmed, Abdul Waheed Khan, Sabir Hussain Khan, Chanzed Alhasan, DFC/219, Mulammad Siddique, SG/569, Mir Gulfaraz Khan, Patwari, Muhammad Parvez, HC/27, Dr. Naseer Ahmed Sheikh, Medical Legal Surgeon CMH Muzaffarabad, Muhammad Sarfraz Abbasi, SHO, Muhammad Yaseen Baig, DSP and Waheeci Ali Gillani, SHO, Shamrez, Najeebullah and. Chemical Examiner Lahore P.Ws were abandoned by the prosecution.
After completion of the prosecution evidence, statements of the accused under Section 342, Cr.P.C.
Were recorded on 13.8.2011. They again pleaded not guilty and refused to produce defence evidence. The learned trial Court heard both the parties and vide its judgment dated 15.11.2011 convicted accused Azhar Elahi and awarded him sentence of Qisas under Section 302(a)/34 APC.
He was also awarded penalty of Rs, 500, 000/-. He was further awarded 3 years simple imprisonment and Rs, 10, 000/- as Daman under Section 337-F(ii) APC. The accused Shafqat Elahi was awarded life imprisonment under Section 302(b) and 34 APC. The accused Mazhar Elahi was granted 10 years rigorous imprisonment under Section 302(c) and 34 APC. The accused were also granted the benefit of Section 382-B, Cr.P.C. The accused Nazar Elahi and Kosar Bibi were acquitted of the charge. Feeling aggrieved from the judgment convicted appellants have filed two separate appeals for their acquittal whereas cross appeal has been filed on behalf of the complainant for enhancement of the sentence awarded to Mazhar Elahi and Shafqat Elahi. The complainant also prayed for reversal of the acquitted respondents whereas Reference No, 77/11 has been sent by the trial Court under Section 31 of the Azad Jammu & Kashmir Islami (Tazirati) Act, 1974 for confirmation of the death sentence awarded to Azhar Elahi.
' Raja Gull Majeed Khan, the learned Advocate for the convict-appellants vehemently argued that occurrence took place in the land which is in possession of the appellants and the deceased was in fact aggressor and has invited the trouble. The prosecution has failed to prove that land in possession of the complainant party was encroached upon. He submitted that place of occurrence has been changed in order to implicate the accused falsely. The learned Advocate further submitted that FIR was concocted because as per record the deceased was unconscious and was not able to narrate the occurrence to the complainant who was not an eye-witness of the occurrence. He argued that prosecution has changed the place of occurrence and also changed their story by substituting the real culprit. He further argued that there is a huge contradiction in the FIR and the Court statements of the prosecution witnesses. He contended that deliberate improvements made by the prosecution witnesses have created serious doubt in the prosecution story. The learned Advocate further contended that appellants were also got injured but their injuries have been suppressed by the prosecution and the police . Was moved for registration of the case by the wife of appellant No, 3 but the same was not registered with mala-fide intention.
He maintained that investigation has been conducted dishonestly and version of the accused has not been considered by the I.O. At all. The learned Advocate submitted that motive alleged by the prosecution has not been proved. He further submitted that witnesses were partial and have suppressed the injuries of the appellants, hence, their evidence is not reliable. The recovery was doubtful rather has not been proved at all, therefore, extreme penalty of death could not be awarded in peculiar circumstances of this case. The learned Advocate submitted that 2 knives allegedly have been recovered from the accused but only one knife has been sent to the chemical examiner and the other has not been sent for chemical examination and no explanation has been furnished by the prosecution in this regard. The learned Advocate further submitted that report of serologist has not been produced by the prosecution which makes the recovery as well as whole story doubtful. The learned Advocate stated that place of occurrence has also not been established because the spot inspection and report of patwari does not indicate the exact place of occurrence. The learned Advocate maintained that in this case the complainant party is aggressor and the accused have otherwise right to defend their person and property therefore, this was not a case of extreme penalty. The learned Advocate further argued that at the most it was a case of free fight and it is not established that who has inflicted injuries on whom, therefore, major penalty in the circumstances of this case could not have been awarded. The learned. Advocate also contended that the trial Court while awarding sentence has not taken into consideration the entire evidence led by prosecution, stand of the defence and the plea of alibi advanced on behalf of Shafqat Elahi, accused. In support of his submissions the learned Advocate placed reliance upon the following cases:--
1. Iftikhar Hussain and others vs. The State (2004 SCMR 1185).
2. Ch. Muhammad Aslam vs. C.P.O. Rawalpindi and others (2011 PCr. IA 1870);
3. Nasima Bibi vs. The State through Advocate General and another (2008 PCr.LJ 613);
4. Abdul Hussain vs. The State (2003 PCr.LJ 1847); 5 Juman vs. The State (2003 YLR 927)
6. Shahid alias Shello alias Imran vs The State (2003 PCr.LJ 1845).
7. Ibrar Hussain and other vs. The State and another (2007 SCMR 605);
8. Aimal Khan vs. The Sate (2012 MLD 441);
9. Muhammad Khan and another vs. The State (1999 SCMR 1220);
10. Akhtar Ali and others vs. The State (2008 SCMR'8);
11. Muhammad Rafique and others vs. The State and others (2010 SCMR 385);
12. Muhammad Bashir vs. The State and another (2008 YLR 1410);
13. The State vs. Nazir Ahmad and 16 others (2005 YLR 1331);
14. Hakim Ali and 4 others vs. The State and another (1971 SCMR 432); and
15. Machhi and 4 others vs. The State (1981 PCr.LJ 575).
' Mr. Sadaqat Hussain Raja, the learned Advocate appearing for the complainant controverted the arguments advanced on behalf of the learned Advocate for the convict appellants by submitting, that place, time and manner of occurrence is admitted by the accused and it is also proved that incident took place as it was narrated in the FIR. The learned Advocate further argued that prosecution evidence has not been challenged by the accused in cross-examination, therefore in is well settled principle of law that portion of evidence which remained unchallenged, would be taken to have been admitted. The learned Advocate contended that it is not possible for the prosecution to leave an actual offender and substitute another because it is against the human nature. The learned Advocate further contended that story as was narrated in the FIR has been established by the statements of the injured eye-witnesses and medical report. The learned Advocate also argued that in presence of direct, reliable and impartial evidence defect in recovery or absence of corroborative evidence, does not spoil the prosecution case and the major penalty can be awarded on the basis of direct evidence. The learned Advocate submitted that accused have taken life of a young man in brutal manner and through direct/cogent evidence the case has been established, therefore, the appellants do not deserve any leniency in the sentence because the proper sentence has been awarded by the trial Court. The learned Advocate contended that acquitted accused were also fully involved in the commission of offence and there is iota of evidence which links them with thi commission of offence but the learned trial Court erroneously discarded the portion of evidence led by the prosecution and extended them benefit of doubt. The learned Advocate submitted that appeal filed on behalf of the convict appellants may be dismissed while accepting the counter appeal, sentence awarded may be enhanced and acquitted accused may alsabe convicted in accordance with law. The learned Advocate placed reliance on the following cases:-
1. Syed Kabir Hussain Shah vs. Ths State (PLD 1984 SC (AJK) 82);
2. Niaz Ahmed vs. The State & 2 others (2008 SCR 326);
3. Muhammad Khurshid Khan vs. Muhammad Basharat & another (2007 SCR 1)
4. Arshad All alias Achhu vs. The State (2002 SMCR 1806);
5. Noor Muhammad vs. The State and another (2005 SCMR 1958);
6. Abdul Rashid and and 3 others vs. Abdul Ghaffar and 5 others (2001 P.Cr.L.J 524);
7. Raja Sarfraz Azam and others vs. State through Advocate General and others (PLJ 2003 Sh.C.
(AJ&K) 11);
8. Abdul Rashid and 3 others. Vs Abdul Ghaffar. And 6 others (2001 SCR 240);
9. Muhammad Anwar vs. Muhammad Akbar and others (PIZ 2000 SC 179);
10. Muhammad Aslam and another vs. State and another (PLJ 2005 Sh.C. (AJ&K) 1);
11. Fatima Bibi and 5 others vs. Sardar Ali and 3 others (2002 PCr.LJ 668);
12. Achar and 6 others vs. The State (1999 PCr.LJ 181);.
13. Bahawal Bakhsh vs. The State (2002 PCr.LJ 1902).
' We have heard the learned counsel for the parties and gone through the record of the case.
' The details of the prosecution case has already been given, therefore, there is no need to repeat the same, however, crux of the prosecution case is that accused sent a message to the deceased on 01.05.2010 to come on the other day i,e, 02.05.2010 in order to settle the dispute with regard to the plot. The deceased accordingly went there at 11:10 am. At that time the accused were fixing tent and thorn wire in the disputed plot. The deceased prohibited. Them from fixing the tent and thorn wire whereupon some altercation took place. Azhar Elahi and Mazhar Elahi accused caught hold the deceased and dragged him towards the shelter of Shafqat Elahi. Upon raising hue and cry by the deceased, Abrar Ahmed, Jahanzeb and Abid Khan reached on spot and tried to rescue the deceased. The accused were armed with the knives. Azhar Elahi and Mazhar E)lahi caught hold the deceased and Shafqat Elahi launched repeated attacks through knife which hit him at his chest.
The occurrence was reported by Jahanzeb Khan, P.W-2 through written application Exh. PG/1. FIR No, 39/10 was registered under Sections 324/337 and 34 P.C. Injured Babar succumbed to the injuries whereupon Section 302 P.0 was added. The ocular account of prosecution version was furnished by Jahanzed Khan S/O. Haji Orangzeb, Abrar Khan S/O Haji Orangzeb Abid Khan S/O Adalat Khan, Aftab Akbar S/O Ali Akbar, Irfan Gull S/O Gull Zaman, Amad Khalid S/O Muhammad Khalid. The prosecution is also in possession of documentary evidence in shape of post-mortem report Exh.PM, Site-Plan Exh.PJ prepared by Mir Ghulfaraz Khan, Patwari Helga Chatter Domel, P.W 18, recoveries of knives Exh.PD and PE,. Blood stained stone and earth Exh.PA, blood stained cloths Exh.Exh.PC, medical reports of injured witnesses Abrar Khan and Abid, Exh.PQ and Exh.PR, medical reports of accused Azhar Elahi and Mazhar Elahi. Exh.PS and Exh.PU. Shamrez, Najeebullah and Chemical Examiner Lahore P.Ws 7, 8 and 21 were abandoned by the prosecution.
' According to the post-mortem report deceased Babar Khan received following injuries:--
1. Stab wound measuring 2" x 1/4" on right lateral side of the chest in space.
2. 1" x 1/4" stab wound on the upper central part of the back in inter scapular area.
3 . 2" x l'2" stab wound on posterior side of left shoulder mid area.
4. 1" x 1/2" stab wound on upper part of posterior side of left shoulder.
5. 2cm abrasion 'on left eye brow.
' The cause of death has been declared stab wound on right side of chest, Injury No, 1.
' Abrar and Abid, injured witnesses were examined by Dr. Naeem Butt on 02.05.2010. The accused Azhar Elahi was also examined by Dr. Naseer A. Sheikh on 02.05.2010 and declared 7" long superficial incised wound involving skin only lying on pastimes aspect of left wrist. The accused Mazhar Elahi was examined by Dr. Naseer A Sheikh on the same day and declared 2" incised wound on posterior aspect of right farm muscle deep and 1 1/2"incised wound on posterior part of the same fore-arm middle part.
' The contention of the learned Advocate for the accused-appellants that in the application Exh.PG on the basis of which FIR has been registered the allegation of stabbing the deceased with knife was attributed to Shafgat Elahi but during Court statements the witnesses willfully and deliberately changed their version and attributed the same to Azhar Elahi accused due to which whole story of the prosecution become doubtful, is devoid of any force. Firstly, FIR is not a detailed document and the prosecution is not supposed to give details of each and every thing howerer, after perusing the application Exh.PG and FIR Exh.PW as well as statement of the complainant and other witnesses we are of the view that neither there is any contradiction in statements of the P.Ws nor the accused has been substituted as has been argued by Raja Gull Majeed Khan, the learned Advocate for the appellants. In the application it is specifically stated that Azhar Elahi accused stabbed the deceased on his chest. The contradictions pointed out by the learned Advocate in the Court statements of the complainant and eye-witnesses are not material and on the basis of these contradictions the prosecution's case cannot be brushed aside. In the present case so far as the ocular evidence is concerned, the eye-witnesses are resident of locality and on hue and cry of the decease they were attracted to the place of occurrence which is a natural event. The place of occurrence and manner of occurrence have not been disputed by the defence as it appears from the trend of cross-examination and statements made under Section 342, Cr.P.C. The eye-witnesses also got injured in the incident and the defence has not pointed out that eye-witnesses of the occurrence were armed with deadly weapons. On the basis of evidence it is proved that complainant party was empty handed and it was the accused party who was armed with knives. In such circumstances mere relationship of the eyewitnesses does. Not render their evidence doubtful or inadmissible, because considered proposition of law is that mere relationship of the witnesses with the deceaied does not make their evidence unreliable. In order to gain the benefit of relationship of the P.Ws the defence has further to prove that witnesses were inimical and have a motive to implicate the accused falsely. No such suggestion has been put on behalf of the defence during the cross-examination.
' The contention of the Raja Gull Majeed Khan, the learned Advocate that deceased was senseless as it was noted by the Doctor hence, the question of narration of the occurrence to Jahanzeb, complainant does not arise. ' The argument has no substance in it. Firstly because Jahanzeb is eye-witness of the occurrence and his presence is shown in the site plan prepared by the Patwari.
Secondly, the doctor whose statement as per defence is written on Exh.PX available at page 44 of the file has not been produced by the defence, therefore, this argument is also not helpful to the defence.
' The contention of the learned Advocate that the occurrence took place in the shelter of Shafqat Elahi is also not proved from the record. The prosecution witnesses who are injured and have categorically stated that it was deceased who was being dragged towards the shelter and the disputed plot was being encroached upon by the accused despite the fact that they called Babar deceased for settlement but before that they tried to fix tent as well as thorn wire on the disputed plot. It is also not proved that plot in dispute' was in possession of the accused party. They are not owners in the Dell. They have purchased a plot measuring 6 marlas from khasra No, 1212 as is evident from the record whereas disputed plot was a part of Khasra No, 1127. It is also proved from the evidence that the accused were encroaching upon that plot for including the same in their plot, therefore, ocular evidence has fully established its case as was unfolded in the FIR and evidence of the injured witnesses cannot be disbelieved mere on conjectures, surmises and speculations. The prosecution is also in possession of the post-mortem report. The doctor who has conducted the post-mortem has categorically stated that accused died due to the injury which was inflicted on his chest. This injury was inflicted by Azhar Elahi whereas the other accused has also inflicted injuries, therefore, post-mortem report further supports the prosecution version. The site-plan is also supportive of the incident because the defence has not been able to show that occurrence has not been seen by the eye-witnesses or the site-plan has not .Been prepared in their presence or otherwise is doubtful.
' The contention of the learned Advocate that recovery was doubtful and out of the recovered weapons of offence only one has been sent to the Chemical examiner; also does not cast any doubt on the story of the prosecution because the prosecution is in possession of the direct evidence of the injured persons who have seen the occurrence on spot and their presence is not denied. Even otherwise, the value of recovery is of corroborative nature and if the direct evidence is reliable and worth-consideration then defect in recovery or non-production of serologist report by the prosecution hardly furnish a ground for lesser punishment. Reference can be placed on a case titled Javaid Azam and 2 others vs. Muhammad Salem and the State and 9 others (PLJ 1997 SC (AJ&K) 226). In Para 17 of the report at Page 238 the apex Court of Azad Jammu & Kashmir observed as under: "The entire case of the prosecution depends upon the eyewitnesses account not upon the circumstantial or corroborative evidence. In the presence of witnesses two of whom are injured and others having personally seen the accused attacking upon the complainant party, the opinion of the Fire-arms. Expert or Ballistic Expert etc. Matters least. The opinions of Fire-arms Expeit, Ballistic Experts and Chemical Examiners is necessary in the case when the occurrence is not witnessed by the eyewitnesses and the case entirely depends upon circumstantial evidence. The opinions and reports of these experts are alleyways to support or corroborate the other evidence if direct evidence is not available. In the case in hand, the occurrence did not require any corroboration as the direct evidence itself was available. It was the case of broad day light firing in the very busy Chowk witnessed by the prosecution witnesses and all others, who could be produced in defence by the respondents if the matter was otherwise.
' It has rightly been contended by Sadaqat Hussain Raja, the learned advocate for the prosecution that there is no defect in recoveries because all the accused led to the police to the place of recoveries and the alleged weapons of offence have been recovered on their pontation. Mere fact that some other persons from the locality have not been associated does not make recoveries ineffective and unreliable especially keeping in view the trend of the people.
' The contention of the learned Advocate that motive set up in the prosecution story is not proved is also devoid of any force. Dispute between the parties with regard to plot in qUestion was admitted that is why accused sent a message to the deceased to come on 02.05.2010 for settlement of the issue. Even in the cross-examination it has not been suggested that the accused has not sent any message nor they requested for settlement of the dispute. The celebrated principle of law. Is that portion of evidence which has not been challenged by the defence that would be taken to have been admitted.
The story of the prosecution even stood admitted by the accused by taking stand during defence.
The plea of alibi taken by them has not been raised when their statements were recorded under Section 242, Cr.P.C. They have taken this plea at the time of recording of their statements under Section 342, Cr.P.C. It is correct that there is no time limit for taking such plea and the defence can be raised on the basis of the evidence brought on the record but when an accused took a definite plea regarding his absence from the place of occurrence then he is supposed to lead cogent evidence in proof thereof.
The contention of the learned Advocate that a lot of time has been consumed during trial and the accused has expectancy of life because he is a young man, therefore, keeping in view the overall circumstances of the case and time consumed in trial and appeal, lesser punishment may be awarded in the circumstances of this case is also devoid of any force. The superior Courts have laid down some rules for extending the benefit of expectancy of life. Mere claim of the expectancy of life as ground for awarding the lesser punishment has not been considered by the Courts even in the case where considerable ' time has been consumed in trial or in disposal of appeal by the appellate Court. In case titled Raheem Bakhsh vs. Abdul Subhan and another (1999 SCMR 1190) at page 1206 in Para 9 it was observed as under: "From the above discussion, it is clear that earlier view of this Court that delay in the disposal of cases involving capital punishment may give rise to the expectancy of life to an accused and, therefore, in such cases capital punishment may not be awarded by the Court while maintaining conviction, has undergone a change, as it was not followed in a large number of cases decided in later years. We are, therefore, of the our view, the principle of expectancy of life per se it not a valid ground now for awarding lesser punishment in cases involving capital punishment."
' Again in case titled Muhammad Hanif and others vs. The State and others (2001 SCMR 84) at Page 88 in Para 9 it was observed as under: "Adverting to the petition for leave to appeal filed by the complainant we find that the prayer for grant of compensation to the legal heirs of the deceased deserves consideration bit the prayer for enhancement of sentence lacks substance. It has been observed in the operative part of the judgment of the High Court that the extreme sentence of death is not called for on account of "extenuating circumstances" but only one extenuating circumstance has been mentioned therein that the occurrence had taken place on 04.09.1975 and the appellant was convicted under Section 307, P.P.C. And sentenced to .10 years on 17.07.1978 which sentence he has already undergone. In other words .The learned Judges were influenced by the principle of expectancy of life. The said principle has undergone a change by efflux of time and now it is firmly settled that it is not by itself sufficient for withholding the normal sentence for murder."
In view of the law, laid down in the cases mentioned herein above, we c are satisfied that no such circumstance exists on the basis of which the benefit of expectancy of life can be extended to a person who has brutally murdered a young man who was armless at the time of occurrence.
' The contention of the learned Advocate that there are other mitigating circumstances in this case which demand that accused deserve the lesser punishment. We have considered this aspect of the case and are of the view that there were no mitigating circumstances in this case. As stated above that it is proved from the record that the deceased was empty handed. Even the prosecution injured witnesses were also armless and it is also established that the accused have taken undue benefit of the situation, therefore, they do not deserve any leniency in their respective punishments.
' The contention of Raja Gull Majeed Khan that accused have been injured in the same incident and their injuries have been suppressed by the prosecution, therefore, according to him this ground alone is sufficient for conversion of the sentence is also devoid of any force. In the present case the prosecution has not suppressed the injuries gather they have got examined the accused. Their medical report is part of the challan. Injuries are not of such nature which could have been inflicted by using of some weapon and the opinion of the doctor is also to the same effect.
' So far as the contention of Mr. Sadaqat Hussain Raja, the learned Advocate for the complainant that proper sentence has not been awarded to Shafqat Elahi, Mazhar Elahi and Nazar Elahi accused and the sentence awarded to them is not justified on the basis of such evidence which remained un-rebutted is concerned, that is also devoid of any force. The learned trial Court has appreciated the evidence to the 'extent of these accused minutely and its conclusion is perfectly justified on the basis of available avoidance. When conclusion and appreciation by the trial Court is justified and is in accordance with law then such appreciation deserves respect and is liable to be upheld.
' The upshot of the above is that while maintaining the judgment of the trial Court the appeals filed by the convict-appellants as well as the complainant are hereby dismissed. The reference sent by the trial Court stands answered in the manner indicated above.