2023 PLP 629 (MLD)

MUHAMMAD AMJAD RAFIQ, J.

Riasat Ali and Asif Ali under the charge of homicidal killing of Muhammad Ali were prosecuted through a case set in FIR No.369 dated 21.11.2014 registered under sections 302, 148, 149 and 109, P.P.C. at Police Station Sandal Bar, District Faisalabad whereby learned Trial Court convicted and sentenced them as under:- "Imprisonment for life under section 302, P.P.C. each and compensation of Rs.5,00,000/- under section 544-A, Cr.P.C. In default shall further undergo simple imprisonment for six months each." They preferred cited criminal appeals against their conviction and sentence whereas the complainant preferred criminal revision against respondents Nos.2 and 3 therein and criminal appeal against acquittal of respondents Nos.2 to 5 therein as cited above which are being decided through this common judgment.

2. On wee hours of winter morning on 21.11.2014 when the clock chimed 10:00 a.m., Muhammad Ali, brother of the complainant Umer Hayat proceeded from his house situated in Chak No.56/G.B. to his leased land owned by one Rana Tahir to fetch some fodder; as he reached near Killa No.8 falling in Square No.56, he found Asif Ali, Riasat Ali carrying hatchets and Alamgir with sickle around his bull-cart; before he could stop the bull-cart, Asif Ali and Riasat Ali started giving hatchets blows on his back, he in order to save his life jumped from the bull-cart yet Alamgir halted him and inflicted sickle blow on his right elbow joint. He was chased and was given multiple blows of hatchets on different parts of his body. The occurrence was claimed to have seen by complainant, Sarfraz Ahmad and Muhammad Asif who were working in nearby fields. They rushed forward to save the deceased but accused persons fled away therefrom; they attended Muhammad Ali, who succumbed to the injuries at the spot. Motive behind the occurrence was alleged a quarrel between deceased and accused persons took place 5/6 days prior over the fight of dogs.

3. Mujahid Iqbal S.I/I.O. (PW-11) met the complainant at Adda Bagh, where complainant presented a written application (Ex.PH), he initiated proceedings over it and sent the same to Police Station for registration of FIR. Whereafter, he reached at place of occurrence and performed following functions:- Examined the dead body, prepared injury statement and inquest report. He handed over the dead body to Ashiq Ali 3607/C for postmortem examination. He inspected the place of occurrence, prepared inspection note, rough site plan, collected blood stained earth, took into possession bull-cart and after postmortem examination, last worn clothes of the deceased were presented to him and he recorded the statements of witnesses. On 21.11.2014 complainant submitted another application (Ex.PJ) which was transformed into the supplementary statement. On 10.12.2014, he arrested Asif Ali and got recovered hatchet (P-1) vide recovery memo (Ex.PE); on 19.12.2014, he arrested accused Riasat Ali and on his disclosure recovered hatchet (P-2) vide recovery memo (Ex.PF). Lastly, he got prepared report under section 173, Cr.P.C. from the Station House Officer concerned.

4. Dr. Syed Ata Ul Munamm (PW-1) conducted postmortem examination on the dead body of deceased Muhammad Ali on 21.11.2014 at 03:00 p.m. and observed four injuries on his person. In his opinion cause of death in this case was injury No.1 which damaged lumbar vertebrae Nos.2, 3, 4 and spinal cord leading to spinal shock and death; other injuries played trivial role in death, all injuries were ante-mortem; the injury No.1 was sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was 15-30 minutes and between death and postmortem examination was within 12-hours.

5. The prosecution examined eleven witnesses and produced report of Forensic DNA and Serology Analysis Ex.PQ as documentary evidence. The appellants, in their statements recorded under section 342, Cr.P.C., denied and controverted all the allegations levelled against them, accused Asif Ali neither opted to make statement under section 340(2), Cr.P.C. nor produced anything in his defence whereas accused Riasat Ali produced documents Ex.DA to Ex.DD/1-2 in his defence, however he has not made his statement under section 340(2), Cr.P.C.

6. Learned trial court, upon conclusion of the trial, convicted and sentenced the appellants, as stated above vide impugned judgment dated 18.05.2017. Hence, these criminal appeals and criminal revision.

7. Learned counsel for the appellants put much zeal in arguments claiming the appellants as innocent with least concern with the occurrence; other argument was of acquittal of five co-accused during trial on the same set of evidence; available conflict between ocular and medical was suggestive of falling of deceased from an out of control bull-cart; presence of witnesses and the deceased around the leased land was without any evidence. At the end, they prayed for acquittal of the appellants.

8. Learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant catches the criminal liability of accused/appellants stating that it was broad daylight occurrence where identity of the accused/appellants was not at stake; presence of witnesses and deceased around leased land was natural; acquitted co-accused were carrying role of conspiracy, distinguishable to that of the present appellants; recovery of hatchets as an additional support to prosecution; both the appellants have contributed in causing injury No.1 which was cause of death. Lastly, prayed for dismissal of both the appeals filed by the appellants and acceptance of criminal revision as well as criminal appeal filed by the complainant.

9. Heard the respective contentions of proponents; record perused.

10. In this case two crucial questions are of paramount consideration which lay on medical evidence and the ocular account. Prosecution in order to substantiate the injuries upon the person of deceased have brought on record the facts that dead body was taken to the hospital by Ashiq Ali 3607/C who appeared as (PW-5) and confirmed the fact of dispatching the dead body to the hospital where Dr. Syed Ata-Ul-Munamm (PW-1) held autopsy on the dead body of Muhammad Ali deceased and observed following injuries in the terms as mentioned in the postmortem report:- INJURIES:-

1. Contused swelling in an area of 20 cm x 30 cm on back of abdomen across the vertebral column, 6 cm from right iliac crust, 6 cm from mid line of buttock.

2. Laceration 5 cm x 1 cm, on back of left forearm, 7 cm from elbow, 14 cm from wrist joint, # (Fracture), Radius and ulna.

3. Laceration 4 cm x 1 cm on back of right forearm, 6 cm from right elbow, 17 cm from right wrist.

4. Laceration 3 cm x 0.8 cm, on right thigh, 13 cm from right knee, 30 cm from right iliac crest. On dissection of Injury No.1, he found as under:- Large hematoma present with L2, L3, L4 vertebrae fractured and spinal cord damaged. Injury No.1 is the most suspicious injury which is the cause of death; it is a contused swelling measuring 20 cm x 30 cm on the back of body of the deceased. No laceration, no compressed wound, no depression on or around injury No.1 was visible during the examination; however, doctor observed large hematoma present with L2, L3, L4 vertebrae fractured and spinal cord damaged. Assailants were armed with hatchets, though it has not been deposed that from which side of the hatchet the assailants caused the injury yet no incised wound was visible which shows that hatchet was used from the hind side; therefore, it was expected that some depressed wound or crushed wound should have been appeared on the body of the deceased particularly when it is mentioned in the inquest report that the deceased was a skinny man/maintains thin body; therefore, hypothesis put forth by the accused during cross-examination that the deceased had fallen from an out of control bull-cart cannot be ruled out outrightly. Though doctor has denied the suggestion and deposed during cross-examination that "There is no possibility of any of the injuries can be caused while hitting against solid articles i.e. bricks or stone etc." yet it remained a mystery that how such injury was caused and in what manners; suggestions were put by the defence that deceased firstly fell on the bull-cart and then on the ground. Question appears whether injury to deceased was accidental as suggested by the defence or it was homicidal as claimed by the prosecution could only be thrashed in the light of literature available on such type of injury. The spinal injuries are generally accidental, rarely suicidal and they are occasionally homicidal. As the doctor has observed the nature of injury No.1 as contused swelling, therefore, to begin with how contusions/bruises are caused, reference is made to the observation of a renowned forensic expert Mr. Jaising P MODI who in his Textbook of Medical Jurisprudence and Toxicology has well explained the nature and causes of such injury in following terms:- BRUISES/CONTUSIONS "Bruises or contusions are injuries which are caused by a blow from a blunt weapon, such as a club (lathi), whip, iron bar, stone, ball, fingers, fist, boots or by a fall, or by crushing or compression. These are accompanied by a painful swelling and crushing or tearing of the subcutaneous tissues without solution of continuity of the skin. The swelling is due to the rupture of the small subcutaneous blood vessels producing in the cellular tissues, extra-vasation of blood, which is known as ecchymosis. The term effusion of blood is ordinarily limited to extra-vasation of blood in a pleural cavity. Haematomas are formed when large blood vessels are injured. It shows that injury can be caused by a blow from a blunt weapon or by, a fall, crushing or compression. He further explained appearance of such injury which means how it look like and reasons of such appearance with following observation:- Bruises or Contusions and Haematomas Contusion or bruises are formed due to the rupture of small subcutaneous blood vessels. Skin is intact. Haematomas are formed when there is a collection of blood due to injury to large blood vessels. Swelling, tenderness and discoloration of the skin are the signs of contusion/haematomas. They appear after sustaining the injury. Sometimes, it is delayed by one or two days. They can appear either at the site of impact or away from it. Blood may gravitate to some other place in the same anatomical plane-'black eye'. There is extravasation of blood, which is known as ecchymosis with or without abrasion over it. They do not occur due to post-mortem violence. Age of Bruises or Contusions and Haematomas Dark red 18-24 hours Blue, bluish-black, brown, livid red 1-4 days Greenish 5-6 days Yellow 7-12 days This yellow colour slowly fades in tint till the 14th or 15th day when the skin regains its normal appearance. These changes do not occur uniformly. Always a combination of colours is seen, which cannot be specifically named. It is called as variegated colour appearance and the duration is five days and beyond. In this case doctor has observed hematoma over injury No.1 which shows that large blood vessels were damaged. He further commented about fatality of such type of injury as under:- Result of bruises. Bruises are, as a rule, simple injuries. They are seldom fatal unless accompanied by the rupture of an internal organ, or by extensive crushing of the tissues and large extra-vasation of blood, producing sloughing and gangrene of the parts. However, several bruises, though trivial individually, may cause death from shock. Dr. S. Siddiq Husain in his Textbook of Forensic Medicine and Toxicology explains injuries on spinal cord as under:- "Injuries of the spine and spinal cord are generally accidental, occasionally homicidal, rarely suicidal. Fracture of spine is produced by

1. Direct violence as blow, etc.

2. Indirectly by forcible bending of body or by a fall on buttocks, feet, etc. Fractures are generally associated with dislocation and these cause compression, laceration or crushing of the cord which produce paralysis of the body below the seat of injury. If fracture occurs above 4th cervical vertebra, it is usually immediately fatal, owing to implication of the phrenic nerves. If the three lower cervical vertebrae are injured death is usually within 24 hours. In other vertebrae, the results will depend upon the site of the injury." This study shows that fractures are generally associated with dislocation causing compression, laceration or crushing of cord; which has not been explained by the doctor in this case. Even instantaneous death is not possible in such injuries except injury to cervical discs but herein death occurred within 35 to 60 minutes. This expression was also highlighted in Simpson's Forensic Medicine Tenth Edition by Bernard Knight which is reproduced as under:- "The Spine may be compressed, extended or angulated. The damage may occur at a disc or at a vertebral body or both. The neural arches as well as transverse processes may be damaged. The vertebral artery may be torn in the atlas, something when the transverse process is fractured from a blow on the side of the neck. This can lead to a fatal subarachnoid haemorrhage. Compression, as in a fall on to the feet from a height, may crush one or more vertebral bodies, but a much more common lesion is a 'wedge' fracture, where violent hyperflexion causes crushing and collapse of the anterior part of a vertebral body, with consequent angulation and narrowing of the spinal canal. Lateral or anteroposterior force can cause a fracture dislocation, with one vertebral body riding over another, again with crushing of the cord in the distorted canal. Discs can be torn or avulsed as a pure lesion, but are often involved with adjacent bony damage to the vertebral body. Lateral dislocation of the spine at a disc can also distort or obliterate the spinal canal and cause cord damage." This study is of the view that compression as in a fall on to feet from height may crush one or more vertebrae yet often involved with adjacent bony damage to vertebral body. Doctor has not explained how much damage was caused to spinal cord in this case. The above copious references show that injury can be caused by a blunt weapon as well yet it must have systemic symptoms as highlighted above and in this case following are missing:-

1. Discolouration of skin has not been reported by the doctor to gauge the time of injury.

2. If spinal cord was damaged, what was its nature either compressed, crushed, dislocated or any other condition.

3. Whether injury was result of direct blow on the spine or fracture was caused due to fall on to the feet from height. So it could not be proved by the prosecution that how injury No.1 was caused and in what circumstances. To understand this dogma it would be appropriate that position of vertebrae column and its vertebrae should be explained with following diagrams:- As evident from above diagram vertebrae column is divided into four curves as reflected above which has its own response to the injuries as per Medical Jurisprudence depending upon nature of injury. To further clarify that such curves contain how many vertebrae it is important to show relevant diagram which is as under:- This diagram shows that there are seven vertebrae in cervical curve which are C1-C7; thoracic curve accommodates 12 vertebrae Th1-Th

12. Lumber curve finds 5 vertebrae in the region ranging from L1-L

5. In this case L2, L3, L4 vertebrae were found fractured without any compression, crushing, laceration around or on the vertebrae column. Impact of hatchet must have produced depression, crushing or laceration on the back of deceased, particularly when deceased was a skinny man being aged about 50-years, as reflected from inquest report whereas the accused/ appellants were very young men ages ranging from 22 to 24 years, therefore, mystery persists about causation of injury No.1. Dr. C. K. Parikh in his Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology defines Spine and Spinal Cord as under:- Fractures of the spine may be due to direct violence especially if disease is present. They often occur from indirect violence such as a blow on the chin, fall of a weight on the head, hitting the head when diving into shallow water, or fall from a height on to the buttocks. If the level of compression is above the fourth cervical segment, death is seldom long delayed on account of asphyxia resulting from paralysis of the muscles which control respiration. Death usually occurs within 24 hours if the three lower cervical vertebrae are injured. When the upper dorsal vertebrae have been fractured, death may occur after 2 or 3 weeks due to complications of being bed-ridden, viz, bed sores, cystitis, pyelonephritis, etc. Life may be prolonged for years with partial paralysis of the lower limbs if the lower dorsal or upper lumber vertebrae have been injured." As observed above, fall from a height on to the buttocks is also one of the causes of fracture of vertebral column; this has a matching sense with injury No.1 wherein contusions found near the area of right illiac crust and buttocks. So, hitting the deceased on the bull-cart and then fall on to the earth either on to his feet or buttock cannot be ruled out particularly when witnesses deposed about jump of deceased from bull-cart in order to save his life; apparently, no other possibility of causing such injury could spur out from the record. Though instantaneous death due to injury No.1 on the person of deceased was not possible yet taking reference, cited above, of Mr. Jaising P MODI wherein he stated that several bruises, though trivial individually, may cause death from shock and doctor has also observed the same in this case. Doctor has cited the weapon of offence as in postmortem report yet nature of injuries described in the postmortem give somewhat different connotation. Thus, prosecution loses its limb of medical account to catch the offender with criminal liability, as such, the medical evidence is found to be contradicting the ocular account which cannot be relied upon. Reliance is placed on the dictum laid down by the Hon'ble Supreme Court of Pakistan in cases law "Muhammad Idrees and another v. The State and others" (2021 SCMR 612) and "Muhammad Shafi alias Kuddoo v. The State and others" (2019 SCMR 1045).

11. Prosecution's ocular account led by Umer Hayat, complainant (PW-8) and Sarfraz Ahmad (PW-9), though claimed to have been present at the place of occurrence yet role assigned to the present accused/ appellants has received a dent when Investigating Officer declared one of the accused Alamgir innocent, who later died. Prosecution has introduced a story of abetment in this case which was also found false by the Investigating Officer and resultantly the accused persons Bashir Ahmad, Qasim, Habib and Basharat were stood acquitted. PWs stated that they were at a distance of 1 acre away when they had seen the assailants; they ran towards the deceased but by the time accused fled away from the place of occurrence; they admitted that accused were not armed with any firearms; yet they had not chased the assailants in order to apprehend them. Both the PWs deposed that they did not offer water to the deceased because he immediately succumbed to the injuries, whereas doctor observed probable time between injury and death as 15-30 minutes which belies the contention of the PWs. They further deposed that blood was oozing from the body of the deceased and their clothes and hands were stained with blood but they did not hand over the blood stained clothes to the police. PW-8 stated that injured/deceased received 3/4 injuries from the hands of the assailants at bull-cart and after that deceased ran towards northern side in order to save himself, assailants chased the deceased and caused more 20/25 injuries at distance of 02-kanals. Similar was the deposition of (PW-9), however, he stated that assailant inflicted many injuries to the deceased at a distance of 02-kanals. The conduct of both the witnesses is highly objectionable that the deceased was being beaten by the accused and they could not intervene the situation and could not reach to the deceased during this time which shows they were not present at the place of occurrence. Witnesses were shown present at point No.3 as per site plan which is very close to the place of occurrence and they also deposed that they were at a distance of 1 acre (at one point mentioned as 1 Killa) so they could not make resistance in order to save the deceased is not appealable in the circumstances. Investigating Officer while appearing in the witness box as PW-11 stated that he drafted the complaint at Adda Bagh, he was present there in connection with patrolling duty when the complainant appeared before him and presented written application for registration of FIR. Ashiq Ali 3607/C (PW-5) deposed differently about this fact that he was present along with said Mujahid Iqbal S.I. (PW-11) when a person came on the motorcycle and orally informed them and then they proceeded to the alleged place of occurrence. The complainant deposed that he went to police station for registration of FIR on a motorcycle belonging to Atif his cousin; police met him at Adda Bagh and they were five in numbers; the application was written by Atif at Adda Bagh and the paper was provided to them by the police. This runs counter to the statement of PW-11. Even PW-5 who has shown himself present along with PW-11, his name is not find mentioned in complaint (Ex.PH) wherein Farooq Ahmed 4062/HC, Muhammad Rafique 716/C, Muhammad Idrees, 348/C and Muhammad Tariq 5316/C were shown present along with Mujahid Iqbal S.I., so apparently FIR was lodged later and not at the place where the complainant is claiming. Investigating Officer admitted that during investigation the complainant and the witnesses did not show the proof of their ownership of land where the occurrence took place. Draftsman who appeared as PW-4 stated that he did not see any footprints of anybody on points Nos.1, 2 and 3 and PWs did not told him about the ownership of Killa near the place of occurrence and there was no Dera shown in the scaled site plan (Ex.PD), so this also goes against the prosecution that there was no reason for presence of PWs at the place of occurrence at the relevant time. The presence of claimed eye-witnesses at the time and place of occurrence could not be proved; therefore, their testimony cannot be considered as credible or trustworthy. Fortified with the view expressed in the judgments reported as "Zulfiqar Ali v. The State" (2021 SCMR 1373), "Pathan v. The State" (2015 SCMR 315) and "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596).

12. Motive of quarrel between appellants and the deceased over dog fight though to some extent was dug out by the Investigating Officer yet its being double edged weapon cut both ways which is not helpful to the prosecution. Reference is made to the judgments reported "Muhammad Ashraf alias Acchu v. The State" (2019 SCMR 652) and "Tariq v. The State" (2017 SCMR 1672).

13. Recovery of hatchets from the accused is of no use as were not blood stained and even both the hatchets were recovered from the house of Riasat Ali appellant on the same day. One hatchet was shown recovered from Asif Ali appellant and out of two other hatchets shown present at the place of recovery; one was separated for Riasat Ali as recovered on his lead treating it as weapon of offence is nothing but plantation, so its being joint recovery is also inadmissible. I have sought guidance from the judgment reported as "Shahid Hussain alias Multani v. The State and others" (2011 SCMR 1673).

14. Grouting all the facts and circumstances, I am of the considered view that the panorama of prosecution case theory is not confidence inspiring; thus, prosecution has failed to prove its case against the appellants beyond shadow of reasonable doubt. Above submissions find support from the judgments "The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others" (2021 SCMR 873), "Najaf Ali Shah v. The State" (2021 SCMR 736) wherein Hon'ble Supreme Court of Pakistan has held that for extending benefit of doubt it was not necessary that there should be many circumstances; if there was only one doubt, the benefit of the same must go to the accused. Recoveries being joint are inconsequential and motive being double edged weapon is of no help to the prosecution. The only irresistible conclusion is that the prosecution has failed to establish the charge against the appellants; therefore, in the given circumstances, I have no option except to allow both the titled appeals Nos.35447 and 43773 of 2017, resultantly, the same are ALLOWED, the conviction and sentence of the appellants are set aside and they are acquitted of the charge by extending the benefit of doubt. They are in custody, they be released forthwith if not involved in any other criminal case. The case property, if any, be disposed of in accordance with law and the record of the learned trial court be sent back immediately.

15. For the reasons recorded hereinabove, Criminal Revision No.47259 of 2017 seeking enhancement of sentence of the respondents Nos.2 and 3 and Criminal Appeal No.47243 of 2017 against acquittal of respondents Nos.2 to 5 are without any merit, the same stand dismissed in limine. JK/R-20/L Order accordingly.