1994 P Cr (PLP)

On 22-12-1991 this D.S.P. went to the spot and investigated the case. On 24-12-1991 he interrogated the appellants and found them guilty and the challan was submitted in the Court.

8. Dr. Liaqat Ali Bhatti P.W.10 being posted as C.M.O. D.H.Q. Hospital Pakpattan examined Manzoor medically on 18-8-1991 at 9-30 a.m. and found eight blunt weapon injuries on his person. All the injuries were kept under observation and the probable time of injuries was one hour. Exh.P.K. is the report of M.L.R. and Exh.P.K./1 is the diagram showing the location of injuries.

9. P.W.2 Dr. MA. Jalil, Medical Superintendent, D.H.Q. Hospital, Pakpattan did the post-mortem examination on the dead body of Manzoor on 18-8-1991 at 5 p.m. and found the following injuries on his person:-- (1) An contusion mark 35 c.m. x 2 c.m. with diffused swelling 8 c.m. x 8 c.m. on the dorsum of the right hand. (2) A diffused 6 c:m. x 6 c.m. on the outer part of the right elbow joint. There was fracture of the underlying bone i.e. outer condyle of right humerus. (3) A diffused swelling 7 c.m. x 3 c.m. on the dorsum of the left hand extending up to the roots of the fingers there was fracture of the first metacarpo phalyngeal joint of the left little finger. (4) A contusion mark 4 c.m. x 2 c.m. on the outer part of left elbow joint. (5) A diffused swelling 7 c.m. x 3 c.m. on the front of abdomen in the left hypochondrum. (6) A contusion mark 2 c.m. x 1 c.m. on the outer part of the right hip joint. (7) A diffused swelling 25 c.m. x 10 c.m. extending on the whole of the lower part of right thigh and extending upto the right knee and a part of the upper part of the right leg. The swelling was soft to touch. The underlying bone right femur was fractured at its distal 2/3 and there was massive effusion of blood due to haemorrhage in the soft tissues of the thigh. The right popliteal artery was injured. (8) A contusion mark 2 c.m. x 2 c.m. with a swelling 4 c.m. x 3 c.m. on the outer part of the right ankle joint. In the opinion of this doctor the death of the deceased occurred due to accumulative traumatic shock of all injuries including the multiple fractures involved in them and massive internal haemorrhage due to injury No.7 alongwith its fracture. All the injuries were collectively sufficient to cause death in this case. The probable time that elapsed between injuries and death was about 3/4 hours and between death and post-mortem was about 6 to 7 hours. Exh.P.B. is the post-mortem report and Exh.P.B./1 and Exh.P.B./2 are the diagram showing the locale of injuries.

10. All the accused pleaded not guilty to the charge and claimed the trial. To substantiate the charge against them the prosecution examined as many as 11 P.Ws. including Abdul Ghafoor P.W.1 and Abdul Shakoor P.W.3 as the eye witnesses; Dr. M.S. Jalil P.W.2 and Dr. Liaqat Ali Bhatti, P.W.10 as the Medical Officers; Ch. Masood Iqbal, D.S.P., P.W.7, Ghulam Qadir, S.I. P.W.9, Mian Mushtaq Ahmad S.H.O. P.W.6 and Falak Sher Khan, A.S.I. P.W.5 being the Investigating Officer of this case; while the remaining are the recovery and the formal witnesses.

11. When confronted with the prosecution evidence all the three appellants and Nazir accused traversed the allegations of the prosecution in their entirety and while professing their innocence they took up the plea that all the P.Ws. are related inter se with the deceased and they have made false statements against them when they were not present at the spot at the time of alleged occurrence. It was an unseen occurrence which took place in the early hours of the morning. Manzoor Ahmad was found lying injured near the sugar cane crop who was removed by some students who were going to school and when they reached in the city Pakpattan Sharif, Abdul Ghafoor complainant P.W.1 met them and they handed over the injured to him. Nevertheless none of the accused produced any defence evidence except Shahsawar appellant who tendered in evidence the report under section 173, Cr.P.C. of this case which is Exh.D.D. and nor any of the accused opted to make statement on oath as required under section 340(2), Cr.P.C. in disproof of the allegations levelled against them.

12. The learned counsel for the appellants contended that this is a case of un-witnessed occurrence as admitted by the P.Ws. that Manzoor deceased was found lying in an injured condition near the sugar-cane crop and there were some students who saw him in such a condition and shifted him to the hospital for treatment. It was also contended by the learned counsel for the appellants that P.W.1 and P.W.3 being the real brothers of the deceased and related inter se and also having previous enmity with the appellants could not be relied upon for want of corroboration of their evidence from any unimpeachable and independent source. It was also argued that the prosecution failed to prow motive in this case as it was obliged upon it to produce the copy of the F.I.R. to prove previous enmity between the deceased and the appellants and except that previous alleged occurrence no other enmity has been shown between the deceased and the accused persons. It was pointed out that recoveries in this case of the incriminating articles have rightly not been believed by the learned trial Court the weapons being Sotas having no stains of blood. It was lastly argued that the P.Ws. in this case had not been present on the place of occurrence at the time when the occurrence took place and they just out of suspicion substituted all the accused of this case whereas the occurrence was committed by some other persons who were named before the Investigating Officers during the investigation of this case.

13. Conversely the learned Assistant Advocate-General appearing on behalf of the State supported the judgment of the learned trial Court and submitted that it is a case of prompt F.I.R. wherein the appellants have been named with the weapons carried by them and specific roles have also been ascribed to them. It was also submitted that the ocular account furnished by P.Ws.l and 2 has been corroborated by motive and medical evidence and, therefore, it was argued by the learned counsel for the complainant that the appellants should have been awarded the capital sentence in this case.

14. I have given my thoughtful considerations to the arguments advanced by both sides and have also gone through the evidence with the able assistance of the learned counsel for the appellants. There is no doubt about the fact that P.W.1 Abdul Ghafoor and P.W3 Abdul Shakoor are the real brothers of Manzoor deceased. Evidently the question to be determined in this case is whether these eye-witnesses were present when the occurrence took place and whether they can be relied upon when the parties did not have their slates clean before this occurrence. It is also to be seen whether the prosecution evidence stands corroborated from an independent and unimpeachable source when old enmity is being alleged. Lastly as urged by the learned counsel for the appellants it is also to be seen whether the Rule of giving the benefit of doubt to the accused as enforced by Islam is applicable in this case in view of the facts and circumstances of this case. Admittedly there cannot be an inflexible rule that the statement of an interested witness cannot be. accepted without corroboration but the Court has to satisfy itself that no innocent person is implicated alongwith the guilty. The Courts will also have to look for some circumstances that may give sufficient support to the statements of the relative witnesses so as to create that degree of probability which can be made the basis of conviction.

15. In this case to prove that Abdul Ghafoor P.W.1 and Abdul Shakoor P.W.3 had not witnessed the occurrence the learned counsel firstly took me to the cross-examination of Abdul Ghafoor P.W.1 where he admitted that Masood 1qbal, D.S.P. P.W.7 had investigated this case and this witness had narrated the occurrence before him. Although this witness denied of having got recorded in Exh.DA. that some people had brought Manzoor deceased on a tractor-trolly and when they reached near the Kothi of Ghulam Mustafa Khokhar he met them, and stopped the tractor-trolly by raising his hand and talked with Manzoor but he did not speak as he was unconscious, but this witness could not give any explanation when was confronted with his previous statement Exh.DA. wherein it was so recorded. He was also confronted with his previous statement during cross-examination wherein he had stated that after he took Maozoor deceased to hospital he was given injection and medicine and doctor took him inside where he died after 10/15 minutes. It was denied but it was found recorded in Exh.DA. the previous statement of this witness. This witness also denied the suggestion that some schoolboys found his brother Manzoor lying on the road in injured condition and they took him towards hospital and thereafter he came to know that his brother had been injured. This witness during cross-examination denied that the police had joined one Falak Sher, Hassan Shah and Hanif etc. as suspect to be involved in this occurrence. Similarly on the point that Abdul Shakoor P.W.3 had also not witnessed the occurrence the learned counsel pointed out that during cross- examination this witness denied that he had recorded in a statement Exh.D.C. that one Taj and his brother Manzoor deceased had already gone on bicycles to Pakpattan Sharif 'but he has confronted with his previous statement Exh.D.C. where it was so recorded. He was also confronted with his previous statement where he had stated that during his journey to Pakpattan his cycle had been punctured and after getting the air inflated in the tyre he then proceeded towards the city. He also denied that he had stated in his statement Exh.D.C. that his paternal-uncle had brought trolly from the village, by which Manzoor was taken to the hospital when he was complaining of stomach pain only. However, these facts were found stated in Exh.D.C., the statement made by this witness before the D.S.P.

16. In this case the prosecution examined Mian Mushtaq Ahmad, Inspector P.W.6 who took over the investigation of this case on 20-8-1991. He admitted that eleven persons appeared before him in defence of the appellant to say that the real culprits were not named in the F.I.R. Again 25 more persons appeared before him in defence of the appellants whose statements, he recorded in the case diaries. The finding of this witness after recording the defence evidence was that Karam Din appellant was lying ill in his house at the time of occurrence. This witness also stated that the real culprits in this case have been let off and the innocent persons have been involved. The view of this witness on 15-10-1991 was that Ahmad Yar and Karam Din appellants were not present on the spot at the time of occurrence but they were challaned upon the insistence of the complainant party. This witness further admitted during cross-examination that Sikandar Hayat, D.S.P. who also investigated this case instructed him to produce Taj Joya, Falak Sher, Hassan Shah and Hanif etc. before him as he had laid suspicion against them as the accused and also directed this witness to consider Nazir Ahmad accused Ahmad Yar and Karam Din appellants as innocent.

17. P.W.7 Ch. Masood Iqbal, D.S.P./S.D.P.O. was entrusted the investigation of this case on 3-11-1991. He states that he correctly recorded the statements of Abdul Ghafoor complainant, Muhammad Ramzan and Abdul Shakoor P.Ws. without any addition or alterations which are Exhs.D.A. and D.C. This witness also stated that one Zulfiqar, Tahir Mushtaq, Muhammad Adam and Muhammad Yasin who were the students and residents of Khola Utam Singh appeared before him and made statements. After their statements the finding of this D.S.P. was that actually they had removed the deceased Manzoor in injured condition from the place of occurrence and shifted him to the hospital on a bus and the finding of this witness was that actually Manzoor deceased was carrying on with Mst. Farida Bibi daughter of one Noor Hussain and this witness had also been conducting raids upon the house of Falak Sher etc. the suspected accused in this case but he failed to join them in the investigation when in the meantime it was transferred from him and was entrusted to Mirza Qasim Baig, D.S.P. Pakpattan Sharif. Ghulam Qadir, S.I. P.W.9 admits that he visited the place of occurrence immediately after the occurrence and prepared the inspection notes where there is no mention of the presence of Abdul Ghafoor as the eye-witness of the occurrence and nor his name finds mentioned in the scaled site plan Exh.P.H. and Exh.P.H./1 17-A. The defence version taken up by the appellants during their statements under section 342, Cr.P.C. if put in juxtaposition with the prosecution evidence as discussed above it appears that there are some inherent doubts in the case of the prosecution. Both the eye-witnesses are real brothers of the deceased and also brothers inter se and the slates of both the parties not being clean before the occurrence, evidence of these witnesses E cannot be relied upon for the purpose of safe dispensation of justice in this case. It is not safe to rely upon the testimony of relative witnesses in this case when their presence at the alleged time of occurrence is being proved to be doubtful. All the Gazetted Officers of the police have doubted their presence during the investigation. Although the ipsi dixit is not binding on the Courts but the fact remains that it does affect adversely upon the prosecution case. Abdul Ghafoor P.W.1 admits that a statement was recorded by the D.S.P. Ch. Masood Iqbal P.W.7 but at the same time when he was confronted with that statement he denied its contents which were not favourable to the prosecution case.

18. As laid down in a judgment - reported as The Crown v. Abdul Ghani P L D 1956 (W.P.) Lah. 300 that a man is to be declared guilty only when his guilt has been clearly proved beyond doubt in other words, when he has been definitely "found out". The rule of criminal jurisprudence, to give C benefit of doubt to the accused is much more than a mere rule of law it is one of the foundations of all good and civilized societies. It is rule of Prudence p which no man ought to and no Judge acting in accordance with the provisions of Evidence Act can ignore.

19. The rule of giving the benefit of doubt to the accused was rigorously enforced by Islam as well: when it was laid down: (Whenever possible, save the Muslims from the sentence (punishment). Do it whenever you find any loophole; because it is better for the imam (Judge) to err in acquittal than in conviction. Tirmizi) (If there is any possible way of doing it, save God's creatures from conviction and punishment, Ibn-i-Maja) (Ward off punishment with doubts, i.e. if any doubt arises, avoid conviction. Masnad Abi Hanifa).

20. For the foregoing reasons and the discussions made I allow this appeal and acquit all the three appellants from the charge of Qatl-i-Amd of Manzoor deceased as recorded against them under section 302(b)/iii, P.P.C. They shall be released forthwith from the jail if not required in any other case. The criminal revision filed by Abdul Shakoor for the enhancement of the sentence of the appellant is also dismissed. N.H.Q./S-418/L Appeal allowed.