P L D 2003 Supreme Court 697 (PLP)

SYED DEEDAR HUSSAIN SHAH, J.

This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Rawalpindi Bench. Rawalpindi dated 11-7-1995, passed in Criminal Appeal No-151 of 1992.

2. Briefly stated the prosecution story is that on the night between 29/30-4-1990, complainant Waheed Akhtar (P.W.9) reported to the police that he invited one Muhammad Nawaz to dinner on the preceding night. It was reported that the complainant alongwith Azmat Hussain and Anees Asghar residents of village Matore went to Beyore on Suzuki No. RIN 4281 to drop Muhammad Nawaz, after having dropped him, they were present at Beyore Bus Stop when at about 12.30,a.m. respondent Aftab Ahmad and Jehangir armed with Chhuris, Masood Ahmad armed with stick reached there on Bus No.3215, which was being driven by Tariq Mahmood. Respondents stepped down from the bus, respondent Masood raised a Lalkara that Azmat Hussain (deceased) should not go alive and he should be taught lesson for insulting their women folk. Reportedly Aftab inflicted Churri blow to Azmat Hussain, which hit him on front of his chest towards left side, and he fell down. Anees Asghar (P.W.10) intervened when Jehangir respondent inflicted churri blow which hit him on his waist on back side towards left. Respondent Masood inflicted soti blow to Anees Asghar which hit him on eye-brow of his right eye. Thereafter all the accused-respondents boarded the bus and left the place of occurrence. According to the complainant, he boarded Azmat and Anees Asghar in injured condition in a Suzuki and took them to Rural Health Centre when Azmat succumbed to the injuries. After finalization of the investigation by police, all accused were challaned.

3. The trial Court, after conclusion of the trial, found Aftab (respondent No.1) guilty of the charge under section 302, P.P.C and sentenced him to life imprisonment with fine of Rs.25,000 or in default to undergo R.I. for two years. He was also directed to pay Rs.25,000 as compensation to the legal heirs of the deceased, or in default to undergo six months' S.I. Respondent Jehangir Akhtar was found guilty under section 307, P.P.C and he was awarded 7 years' R.I. and a line of Rs.5.000 or in default thereof to undergo further R.I. for two months. He was also directed to pay Rs.5,000 as compensation, to Anees Asghar injured PW. or in default to suffer R.I. for two months. Benefit of section 382-B Cr.P.C., was given to both the convicts. The trial Court, however acquitted co accused Masood and Tariq giving them the benefit of doubt.

4. The convicts namely, Aftab and Jehangir appealed against their conviction and sentences awarded by the trial Court while revision application was also filed by the complainant challenging the acquittal of the co-accused Masood and Tariq and praying for enhancement of the sentences of the convicts. The learned Judge in Chambers of the Lahore High Court accepted the appeal of respondents Nos. 1 and 2 and acquitted them in the case while revision application was dismissed vide impugned judgment dated 11-7-1995.

5. Leave to appeal was granted to determine whether the principle of safe administration of justice in criminal cases laid down by this Court was correctly following vide order dated 29-1-1996.

6. Sardar Muhammad Ishaq Khan, learned Advocate Supreme Court for the appellant, inter alia. contended that the impugned judgment is based on the appreciation of road map, which was not put in evidence at the time of hearing of the case before the trial Court. Learned counsel further pointed out that original appointment letter of respondent Aftab was never produced by the accused during investigation, and only at defence stage, without examining its author, has been taken note of by the learned High Court, and at the time of recording his statement, attested photostat copy of the said document was produced; moreover respondent Aftab also refused to give statement on oath under section 340(2), Cr.P.C. in rebuttal of the prosecution evidence. Learned counsel also stated that the principles of admissibility of evidence were not kept in view by the learned High Court while passing the impugned judgment, which resulted in miscarriage of justice; that the Investigating Officer made a query from Medical Officer T.H.Q. Hospital, Kahuta, regarding injury on the person of Aftab.accused whether the same could be self suffered, and report of the Medical Officer was in affirmative (Report of the Medical Officer is Exh.PR/1); that the alleged medico legal certificate was produced by the respondent while recording his statement, which was also not a legally tendered evidence without examining the doctor, who issued the certificate; that the prosecution evidence consisted of two eye-witnesses, out of whom one is an injured witness; that the prosecution evidence was not considered in its true perspective by the learned High Court; that there was no serious ill-will or enmity between the parties prior to the incident except that a day earlier, on the quarrel of children, the deceased had insulted the ladies of the accused party, which was the motive and the same was proved by the prosecution through reliable and trustworthy evidence, which is corroborated by medical evidence as well as the recovery of blood-stained Churri from the possession of respondent No. 1; that in this case time and place of occurrence is admitted by both the parties, therefore, it was incumbent upon the learned Single Judge of the High Court to have considered the entire prosecution evidence in juxtaposition with the defence taken by the respondents in their statements recorded by the trial Court; that respondent Aftab, even for the sake of arguments, if had received injury at the hands of the deceased. which even otherwise was found false by the police during investigation and the doctor also reported that the injury can be self-suffered and he denied the suggestion that the injury could be the result of hitting with the body of the vehicle, he/respondent had not reported the matter even to the police at the first instance.

7. Conversely, Sh. Zamir Hussain, learned Advocate Supreme Court for respondents Nos. 1 to 4 controverted the contentions of learned counsel for the appellant and pointed out that objection was not raised by the defence at the time of hearing of the appeal when the road map was produced before the High Court; that the road map was prepared by Survey of Pakistan, which is a public document and the same is admissible in evidence under Article 50 of the Qanun-e-Shahadat Order, 1984. He further pointed out that the occurrence is admitted by the defence, but in some different version, which was rightly believed by the learned High Court and the impugned judgment is well-reasoned which is not open to exception. In support of his contentions, learned counsel has referred to Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11.

8. Mr. Arshad Ali Chaudhry, learned Advocate Supreme Court for the State adopted the arguments of learned counsel for the appellant and pointed out that the incident is admitted more or less by both the parties and the judgment of the learned High Court is entirely based on surmises and conjectures, misreading or non-reading of the material evidence available on record, as the same is not in accordance with law, laid down by this Court and is not maintainable, that the appeal may be allowed.

9. We have considered the arguments of learned counsel for the parties and have very carefully examined the record available. Admittedly, the crime is promptly lodged with the police wherein specific role of causing fatal injuries with Churri has been attributed to respondent Aftab, which is supported by medical evidence. During investigation respondent Aftab produced bloodstained Churri (P-3), which was sent to the Chemical Examiner, whose report is in positive. Injured witness Anees Asghar (P.W.10) also supported the prosecution version and narrated the same facts as given in the F. I. R and his evidence was not shaken in cross examination.

10. From the perusal of the evidence it transpires that the parties are related inter se and unfortunately the incident took place on the quarrel of the children with the result, as alleged, the deceased abused the women folk of 8 the accused-party and due to that grudge the respondents came duly armed and inflicted Churri blows on the person of the deceased as well as Anees Asghar (P. W.10). On the query of Investigating Officer, the doctor reported that injuries can be self-suffered vide Exh.PR/1, but he denied the version of the defence that the injured P.W'. Anees Asghar suffered injuries by hitting with the vehicle. The entire judgment of the learned Single Judge in Chambers is based on the appreciation of road map produced by the defence during hearing of the appeal. It is strange to note that in this case incident took place on 30-4-1990, whereas the appeal in the High Court came up for hearing in the year 1995, i.e. after about 4 years of the incident. By this time much water had flown under the bridges and developments pertaining to construction of roads/link roads have taken place. Reliance of the learned Judge in Chambers that according to road map the complainant party was not supposed to have travelled by the same passage, in any case, is not acceptable, which is hereby repelled. The natural, reliable and trustworthy evidence supported by surrounding circumstances such as medical evidence and recovery of bloodstained Churri at the behest of respondent Aftab, has not been considered in its proper perspective, which has resulted in miscarriage of justice and is not in consonance with the law laid down by this Court for safe administration of criminal justice.

11. So far the plea of respondent Aftab that he was Army Employee, neither he raised this ground before the. Investigating Officer, nor produced original letter of appointment in Army. It is strange to note that while being examined by the trial Court under section 342, Cr. P.C on 18-7-1992 he produced Photostat copy, of letter alleged to have been issued on 5-4-1990 which was attested by his Counsel Mr. Malik Rafique Awan before the trial Court. In our considered view this document, in any case, is not a valid piece of evidence which was rightly rejected by trial Court with sound and cogent Another ground taken by him that Aftab received injures at the hands of deceased is also belied by the documentary evidence adduced before the trial Court. It would be advantageous to refer the original letter of the I.O./S.H.O.(Exh.PR.1), making enquiry from the Medical Officer regarding injuries on the person of respondent Aftab, which reads is as under:- The report of the Doctor on this very letter reads as under:-- "All the injuries can be self-inflicted. The duration of injuries as stated in MLR is from 6 to 7 days."

12. We have also gone through the Medico Legal Report (Exh.DB) or Aftab respondent, which has rightly been answered by the Medical Officer. The opinion of the doctor referred to hereinabove is also in conformity with the provisions of Medical Jurisprudence and Toxicology Edition 2001. page 388, and the relevant paragraph whereof reads as under:-- "Wounds inflicted by a person on his own body are known as self inflicted wounds, these simulating homicidal wounds are usually produced to support a false charge of assault or attempted murder against an opponent, to augment the seriousness of the injuries which one has already received during a quarrel, to prove self- defence in an accusation of assault or murder or to substantiate a charge of violence and robbery in a case where one had appropriated money or valuable placed on one's charge ... ... ... ... .. ... ... ... ... ... ... ... ... ... ... ....Such wounds are commonly on the front of the body, but may be on those parts of the back which can be easily reached by the hand or on top of the head. They are several superficial cuts or scratches made with a knife, razor or some pointed instrument. They are often parallel with straight regular margins. The direction varies according to site, for example, from above downward and inward on upper arm or multiple oblique or vertical interlacing superficial incisions on the abdomen."

13. In view of the above facts and circumstances, the trial Court rightly discarded the defence plea and accepted the prosecution case to have been proved beyond reasonable doubt against respondents Aftab and Jehangir Akhtar; whereas other co-accused Muhammad Masood and Tariq Mehmood were correctly acquitted by it. In the case of Ghulam Sikandar (supra), at page 19, this Court has observed as under:-- "(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous".

14. In our considered view, the above observation of this Court is neither helpful nor acceptable in favour of the respondents, because in the case in hand the accused-respondents are nominated in the F.I.R with specific role which is supported by the medical and circumstantial evidence. There is no previous enmity or ill-will between the patties. On a petty quarrel between the children of the parties, respondent Aftab inflicted fatal Churri blows on the deceased. Moreover, evidence of the injured P.W. as stated herein above was not considered by the High Court properly and was brushed aside on conjectures and surmises by placing reliance on the road map as well as the photostat copy of the employment certificate of respondent Aftab, which was neither produced before the police, during investigation, nor the author of the same was examined. In view of the above facts and circumstances, reliance of the learned counsel for respondents No. 1 to 4 on Article 50 of Qanun-e-Shahadat Order, 1984, for accepting road map as gospel truth cannot be accepted.

15. In our firm opinion, the impugned judgment is quite contrary to the law laid down by this Court, and is based on surmises, conjectures and extraneous circumstances. The reliance on road map is based on inadmissible piece of evidence. No doubt, photostat copy of the employment letter or respondent Aftab was produced, but its original was not submitted before the trial Court, and it was also not proved that primary evidence was not available, therefore, secondary evidence, such as photostat copy w4s relied upon. This practice, in any case, is not appreciable in the eyes of law, which is hereby repelled.

16. For the facts, circumstances and reasons stated herein above, this appeal is allowed, the impugned judgment of the High Court dated 11-7-1995 is set aside and that of the trial Court dated 27-8-1992 is restored. Aftab and Jehangir Akhtar accused/respondents be taken into custody forthwith for serving their remaining sentences.

17. These are the reasons for our short order dated 28-3-2003. M.B.A./W-46/S Appeal allowed.