1992 PLP 1831 (MLD)

The appeal and criminal revision arise out of judgment, dated 29‑7‑1990, passed by IInd Addl. Sessions Judge, Karachi, (East) in Sessions Case No.1042 of 1989, under section 302/34, P.P.C. Applicant Abdul Latif is convicted under section 304, P.P.C. and sentenced to R.I. for six years and fine of Rs.50,000 or in default, to suffer R.I. for six months more. The fine if recovered to be paid to heirs of deceased. Co‑accused Shakil Ahmad and Jamil Ahmad are acquitted. Criminal Appeal No.161/90 is directed against the sentence and conviction. Complainant Rashid Ahmad has filed revision against inadequate sentence awarded to appellant Abdul Latif and has prayed for enhancement. Since the appeal and revision arise out of the same judgment, I propose to decide both by single judgment. The brief facts of the case are that on 6‑3‑1982 at 0630 hours, Rashid Ahmad lodged F.I.R. at Jamshed Quarter P.S. Karachi, registered as Crime No.82/82 under section 307/34, P.P.C. It is stated that while complainant and his elder brother (name not given) were present in their house on 5‑3‑1982 at 2100 hours, they heard commotion outside. On coming out, they saw their brother Muhammad Islam, who was running a general store, lying on the ground in front of shop constructed near a mosque. Accused/appellant ~Abdul Latif armed with a hockey, was causing blows to Muhammad Islam on his head, while co‑accused Jamil Ahmad and Shakil Ahmad were giving Danda blows on his chest and neck. Muhammad Islam went unconscious and was removed to Civil Hospital by complainant and Islamuddin in a car. As the condition of injured was serious, he was shifted to Jinnah Hospital and admitted in emergency ward. It is also mentioned that prior to this incident, a dispute took place between Muhammad Islam (Injured) on one hand and accused Jamil Ahmad and Shakil Ahmad on the other hand, on the closing of a door shutter, but it ended in a compromise. As the injured subsequently died, the offence was converted to section 302, Pakistan Penal Code. Another F.I.R. of the same incident, which is earlier in time, was filed by Shakil Ahmad on 5‑3‑1982 at 10‑45 p.m. which was registered as Crime No.81/82, under section 323‑324‑34, P.P.C., and is produced by appellant Abdul Latif with his statement under section 342, Cr.P.C. as Exh.

42. The facts given in this F.I.R. by Shakil Ahmad are that he owned a general store near Usmania Mosque and his brother Jamil Ahmad worked with him. Muhammad Islam who also owned a general store, did not like opening of this store, by Shakil and Jamil. At 9‑00 p.m. on 5‑3‑1982, while Shakil and Jamil were present at their store, Muhammad Islam, Muhammad Ishaquc, Mushtaq, and Rashid came. They called Shakil and Jamil outside. As soon as they came out, Muhammad Islam and Mushtaq armed with knives, while Ishaque and Rashid armed with Dandas, started beating them. Jamil received knife and Danda blow on his abdomen while Shakil received injuries on his hand. Certified copy of certificate of injuries Exh.43 on appellant Abdul Latif; produced by Dr. Shahid Azhar Siddiqui in the counter‑case i.e. Crime No.81 of 1982, is produced by appellant with his 342, Cr.P.C. statement as Exh.43. The certificate shows that appellant had a lacerated wound at left side forehead 1/2" x 1/4" x muscle deep and an abrasion/contusion 1/2" x 1/2" x muscle deep at left shoulder joint. Coming now to the facts of the case, charge was framed on 14‑11‑1984 under section 302/34, P.P.C. to which the appellant and co‑accused pleaded not guilty. The prosecution examined complainant Rashid Ahmad P.W.1(Exh.3). He gave the facts as narrated in the F.I.R. He produced the F.I.R. Exh. 3‑A. He stated that the accused had a shop near the shop of his brother which the accused had opened prior to the opening of shop by his brother. On this, according to him, the accused were annoyed and it is shown to be the motive for commission of the offence. He admitted in cross‑examination that accused Lateef received Danda blows and that accused persons were also brought in injured condition. Mashirnama of recovery of Dandas recovered by police is produced, but neither any exhibit number is given, nor it is clear as to through whom it is produced. P.W.2 Islamuddin (Exh.4) was a passerby and he stated, that while passing from the place of incident he saw one person lying injured and helped him to stand. The injured informed him that he was given hockey blows by accused Lateef. The witness was declared hostile and was cross -examined. He denied to have stated in his 161, Cr.P.C. statement that he saw accused Abdul Lateef giving hockey blows to deceased Muhammad Islam or co‑accused Shakeel and Jameel giving Danda blows. He produced Mashirnama of the scene of offence as Exh.4/A. He also denied that his 161, Cr.P.C. statement was recorded. P.W.3 Abdul Ghani (Exh.5) was attracted on hearing commotion from outside his house. He stated that he saw accused Abdul Lateef exchanging hot words with deceased Muhammad Islam. He pacified them and thereafter Abdul Lateef went away. After about five minutes thereafter, father of deceased Islam came and asked his son to close the shop and accompany him. Deceased Muhammad Islam locked the shop and went out when accused Abdul Lateef armed with a hockey while ‑accused Jamil and Shakeel Ahmad empty handed (again said armed with Dandas) came. Accused Abdul Lateef caused hockey blow on the head of the deceased and two more blows with hockey. He also stated that he did not see accused Jameel and Shakeel beating the deceased. The deceased was removed to Hospital by Islamuddin and on the following day at about 6.00 p.m. while he was in the Hospital, Islamuddin died. The memo of Wardat was prepared by police and he signed it as witness which is produced as Exh.4/A. The sketch of Wardat Exh.5‑A, recovery of clothes of deceased Exh.5/B and recovery of hockey from accused Abdul Lateef at his pointation Exh.4/B are also produced. He admitted in cross‑examination that altercation took place on filling of water in front of the shop of accused Jameel. His statement under section 164, Cr.P.C. was produced after the close of prosecution evidence through him as Exh.13‑B, when the A.P.P. moved an application under section 540, Cr.P.C. for recalling this witness for production of statement which through inadvertence could not be produced earlier. He admitted in cross‑examination that accused Abdul Lateef, Shakeel and Jamil also sustained injuries during the incident, but he did not see who caused injuries to them. P.W. 4 Mushtaq Ahmad (Exh.6) stated that at 8‑45 p.m. while coming from Jamshed Road, he heard cries in a lane and when he reached there, he saw his uncle Muhammad Islam lying on the ground. Accused Abdul Lateef armed with hockey while Shakil Ahmad and Jamil armed with Dandas were there. Accused Lateef caused hockey blow on the head of the deceased and the remaining two accused were giving blows with wooden sticks. The injured was removed to Hospital in the car of Islamuddin and on the following day it transpired that Muhammad Islam had died. He also stated that a month prior to this incident the three accused and their elder brother Abdul Haneef had a quarrel with deceased on taking water from public tape. P.W.5 Muhammad Ishaq (Exh.7) is brother of deceased Islam. He was in his house when he heard cries in the lane, whereupon he and P.W. Rashid came out and saw Islam lying injured on the ground, blood oozing from his nose and ear. Accused Lateef was causing hockey blows while co‑accused Jamil and Shakil were causing Danda blows. He has stated that dispute between the parties was due to forceful closure of the door shutter by deceased causing damage to the show‑case of accused in the adjoining shop. He also stated that a day prior to the incident, accused Jamil and Shakil had stopped deceased from taking water from public tap which resulted in this incident. His statement under section 164, Cr.P.C. was recorded. He admitted in cross -examination that about 20/25 persons collected at Wardat before his arrival. P.W. 6 Muhammad Risal Khan (Exh.8) is the father of deceased Islam. He stated that one day prior to the incident his son deceased Islam was filling water from the tap when accused Jamil asked him to remove the buckets. On 5‑3‑1982 at 8‑30 p.m. while all the three accused were in their shop, he asked them to desist from such acts on which accused Jamil stated that he had stopped deceased Islam from taking water. Accused Lateef and Shakeel misbehaved with him whereupon he went to the shop of his deceased son Islam and advised him to close the shop. While deceased was preparing to lock the shop, accused Lateef armed with hockey and co‑accused with Dandas came there. Lateef gave hockey blow to deceased Islamuddin on left side of his head and thereafter gave number of hockey blows. Accused Shakeel and Jamil also gave number of Danda blows. The deceased on receipt of injuries went unconscious and was removed to Hospital in the car of one Islamuddin. A number of suggestions were given to him in cross‑examination with regard to the dispute about encestral properties and to some of such suggestions he answered in affirmative. He admitted that his sister Habibun Nisa died at Karachi, but he did not attend her funeral. P.W. 7 Dr. Shari Muhammad Nizamani produced the post‑mortem certificate Exh.11 and also gave the details of injuries. P.W. 8 Ghulam Nabi Exh.14 acted as Mashir of inquest report prepared at Jinnah Hospital Exh.13. P.W.9 Muhammad Irfan (Exh.14), owned a shop near Wardat and was attracted on hearing commotion. He saw deceased Islam lying injured and unconscious. The people collected told him that deceased was killed by Abdul Latif, Shakeel Ahmad and Jamil Ahmad. He alongwith Rashid and Islamuddin removed deceased Muhammad Islam to Civil Hospital and then to J.P.M.C. About 30 to 35 people had collected at scene of offence. P.W.10 Haider Khan Exh.15 acted as Mashir of arrest of Latif, Shakil and Jamil and he produced Mashirnama Exh.16. He is brother of P.W. Abdul Ghani. He also stated that at the time of arrest, only accused Shakil Ahmad was injured. P.W.11 Muhammad Salim Exh.17 was attracted on commotion. He only saw deceased lying injured, while accused Latif armed with hockey and accused Jamil and Shakil armed with Dandas were present. He admitted that deceased Ishaque and Rashid are sons of his aunt Fatima. P.W.12 Ali Haider Exh.18 was Sub‑Inspect6r and Duty Officer at P.S. Jamshed Quarters on 5‑3‑1982. He was investigating counter case Cr.81/82 under section 323/324, P.P.C. After 001 hour, he received an entry from P.S. that injured Islam was sent to Civil Hospital. He produced station diary Exh.19. He went to Civil Hospital and then to Jinnah Hospital. He produced copy of letter given by him to Doctor Exh.20. At 0630 hours Rashid Ahmad, brother of injured Islam lodged F.I.R. Exh.3‑A. Rashid Ahmad being accused in counter‑case (earlier lodged) was arrested. He prepared memo. of Wardat Exh.4‑A and Sketch Exh.5‑A. He arrested accused Latif, Jamil and Shakil vide memo. of arrest Exh.16. He recorded statements of P.Ws., and at 1850 hours on 6‑3‑1982, he was informed by one Akhtar Ali that injured Islam had died in Jinnah Hospital and he changed section of crime from 307 to 302, P.P.C. He prepared memo. of dead body and inquest report Exh.13. The investigation was taken over by Ch. Muhammad Ashraf. He admitted that on 5th March, 1982 Shakil Ahmad lodged F.I.R. 81/82. He had inspected the wardat and seen bloodstains at Chabootra of shops 17 and 18 but did not collect blood‑stained earth. (These shops belong to accused). He admits that complainant did not name his brother Muhammad Ishaq in F.I.R. P.W. 13 Ch. Muhammad Arshad Exh. 26, was posted as S.H.O. Jamshed Quarter. The accused who were already arrested by S.I. Ali Haider, were interrogated by him. Accused Latif produced hockey used in the crime and Dandas used by Jamil and Shakil which he secured under memo. Exhs.4‑B and 3‑C. He produced Chemical Analyser's report Exhs.27 and

28. He also produced hockey and Dandas, as articles A, B and C. P.W. 14 Dr. Irfan Ali Exh.30 was Medico Legal Officer in Civil Hospital, when on 5‑3‑1982 at 11‑30 p.m. injured Jamil Ahmad was referred by Jamshed Quarter Police Station for examination and treatment. The injured had an incised wound 3/4" x 1/2" at middle of back chest. The injured was admitted in Chest Ward. He issued such certificate Exh.31 and subsequently on 7‑3‑1982 he received Ward Record showing discharge of injured. He produced supplementary medico‑legal report Exh.32 and gave nature of injury as simple. On 6‑3‑1982 injured Shakil Ahmad was referred for examination and certificate. He had a lacerated wound 1/2" x 1/4" on right parietal region. He produced certificate Exh.33. Statement of P.W. Rashid Ahmad under section 164, Cr.P.C. was brought on record as Exh.35, through Rashid Ahmad as it was not earlier produced when he was examined. He admitted in cross that it was not read over to him before obtaining his signature. Statement of accused Abdul Latif under section 342, Cr.P.C. was recorded as Exh. 39 and he produced copies of civil suit in respect of dispute over ancestral property Exhs.40 and

41. He also produced certified copy of F.I.R. 81/82 lodged by Shakil Ahmad under section 323/324/34, P.P.C. on 5‑3‑1982 at 2245 hours. and deposition of Dr. Shahid Azhar in counter‑case as Exh.43 regarding injuries on accused Abdul Latif. Statements of accused Jamil Ahmad and Shakil Ahmad under section 342, Cr.P.C. were recorded as Exhs.44 and

45. All the accused denied the allegation of causing hockey and Danda blows to Muhammad Islam. They stated that deceased and complainant party had attacked Jamil and Latif at their shop resulting into injuries to them. The accused also examined themselves on oath Exhs.46 to

48. No witness in defence was examined. The Trial Court acquitted accused Shakil Ahmad and Jamil Ahmad while convicted appellant Abdul Latif as described above. Mr. Abdul Qadir Halepoto the learned Advocate has contended that F.I.R. Exh.3/A is delayed by more than 9 hours and no reasonable explanation for delay is shown. On the contrary the F.I.R. 81/82 filed by Shakil Ahmad (Exh.42) is earlier in time and both F.I.Rs. are for the same incident but facts narrated by complainants are different. The delay in F.I.R. is suggestive of the fact that a false version was being engineered to involve appellant and co -accused by giving different version of incident. Reference is made to PLD 1982 FSC 4 Azmat Khan v. The State where delay of 10 hours in F.I.R. was held to be inordinate. It is also contended that motive shown in F.I.R. is that earlier to this incident there was a quarrel between Islam (deceased) and accused Jamil Ahmad and Shakil Ahmad over the closing of door shutter. The alleged motive was abandoned during trial when it was stated that dispute between parties was over filling of water from public tap. In these circumstances, the motive as alleged, during trial had to be scrutinised with caution. Reliance in this respect is placed on Habibullah and others v. The State PLD 1969 SC 127 where it was observed that:‑ "But it may be stated as a rule of prudence in judging human conduct that where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinise the credentials of the witnesses, who by their evidence, direct or indirect, speak about the guilt of an accused person on the premises of false motive:" It is next contended that the complainant Rashid Ahmad and P.Ws. have purposely suppressed injuries on the person of accused, which was a deliberate attempt on their part to escape their own liability in the crime which was outcome of some incident. If the complainant Rashid and others P.Ws. had given a true version of incident, it was easy to infer that accused acted in self‑defence. The learned Advocate has referred to Mohabat Khan v. The State 1983 PCr.LJ 2305 where it was held that:‑ "If in the same episode an accused person is injured, it is to be presumed that the injuries were caused by complainant unless, there is anything to the contrary appearing from the evidence." Same view was taken in Muhammad Abdullah v. Muhammad Safdar Khan and another 1973 SCMR

26. Reliance is also placed on Mulazim Hussain and another v. The State 1982 PCr.LJ 1150 and it is argued that when accused Shakil and Jamil were attacked (as they both had injuries) by complainant party and in particular by deceased Muhammad Islam, the question of exceeding right of private defence does not arise, as blows cannot be weighed in scales nor seat of injuries could be chosen during occurrence. The learned Advocate also pointed out that if prosecution failed to explain injuries on two accused the presumption is that injuries were caused by complainant party. It is next contended that even if self‑defence is not pleaded, yet if it spelt out from the facts and circumstances, it cannot be denied to the accused. Reliance is placed on Khalid Javed v. Anwar Khan and others 1987 SCMR 1043 and Muhammad Ramzan v. Dost Muhammad 1988 SCMR

388. The learned Advocate lastly raised few more contentions, that it is a case of two versions, and both parties have suppressed injuries on each other. P.Ws. are interested as well as set up, that name of P.W. Abdul Ghani is not given in F.I.R. to be an eye‑witness of occurrence, that P.W. Islamuddin was declared hostile, that number of injured on accused side is more than the injured on complainant side, the aggression was on the part of complainant party as the 1.0. has stated .that there was blood on Chabootra of shop of accused and lastly that on same evidence Shakil and Jamil have been acquitted. Mr. IA. Hashmi the learned Advocate appearing for complainant in Cr. Rev. 81/91 has contended that since the appellant was proved to be the real culprit, there was no ostensible reason for convicting him under section 304, P.P.C. but he should have been convicted under section 302 and given maximum sentence as there were no mitigating circumstances. It is also contended that right of self‑defence was not pleaded by accused either during trial or in their statement under section 342, Cr.P.C. and in these circumstances, at appellate stage, the same cannot be urged. He has lastly contended that there is ocular evidence corroborated by circumstantial evidence and medical evidence, that appellant Abdul Latif caused hockey blows to deceased Islam. Therefore, the sentence should be enhanced. As to the delay in F.I.R., the learned Advocate argued that the complainant and his other relatives were making efforts to attend to the injured and did not realise that F.I.R. was being delayed. In these circumstances, the delay would not be material. He admitted that no acquittal appeal was filed against acquittal of accused, Shakil Ahmad and Jamil Ahmad. No case‑law was referred by the learned Advocate in support of his contention. Mr. Shaukat H. Zubaidi, learned A.A.‑G. did not support the conviction. He contended that question of credibility of witnesses is involved in this case. Conviction of accused Abdul Latif could be recorded on same evidence, if there was corroboration. In the present case there was no corroboration, and star P.Ws. Rashid Ahmad, Mushtaq Ahmad and Muhammad Ishaque were accused in counter‑case. Their evidence needed strong and independent corroboration, which is lacking. The evidence of P.W. Abdul Ghani if kept aside, the rest of evidence becomes family affair, as the P.Ws., are all related inter se and though 20‑25 persons of locality had collected, no independent witness was examined, though it was a thickly populated place and time of incident was 9‑00 p.m. There is enmity between appellant Abdul Latif and P.W. Abdul Ghani which is proved from the copy of plaint in a civil suit filed by appellant alongwith his 342, Cr.P.C. statement. There is another inherent defect that some witnesses could see the actual incident while the others could not. P.W. Risal Khan is not trustworthy as admittedly there was dispute over ancestral property between the parties. The learned A.A.‑G. also contended that there is no doubt about the incident but it is doubtful if ,it happened either in the manner as alleged or in the manner as shown in the counter‑version given in F.I.R. 81/82. The I.O. seems to have sided complainant party. He admits that there were blood marks on shutter of shop of accused which he did not collect. He even failed to pinpoint the actual place of incident. I have gone through the evidence, perused the judgment and case‑law referred. The place of incident seems to be in front of shop of accused, where according to I.O. there was blood on Chabootra. The prosecution has shown a different place of incident and this in my view seems to be due to influence of complainant party. The motive as shown in the F.I.R. is abandoned and a new stand is taken that there was dispute over filling of water from the public tap. Delay of 9‑1/2 hours in F.I.R. is unexplained. Even though some of the P.Ws. had taken injured to Civil Hospital and then to Jinnah Hospital, yet others could report the incident to police. As against this, the counter‑version given in Cr. No.81/82 by Shakil Ahmad is with utmost promptness. The report of said incident. shows that while Shakil and Jamil were at their shop, Islam (deceased), Muhammad Ishaque, Mushtaque and Rashid came and attacked. Islam and Mushtaque having knives gave knife blows causing injuries to Jamil and Shakil. These injuries have been proved through P.W. 14, Dr. Irfan Ali Oureshi (Exh.30). Though that case ended in acquittal, yet it is conclusively established that on accused side Jamil and Shakil were injured, Both the parties have suppressed the injuries on the others and there seems an obvious attempt by both sides not to give true facts. All P.Ws., are closely related and independent witnesses though available were not examined. Complainant Rashid Ahmad and P.W. Muhammad Ishaque are the brothers of deceased. A, P.W. Mushtaque is nephew, while P.W. Muhammad Risal Khan is the father of deceased. Rashid, Ishaque and Mushtaque were accused in counter‑case. The ocular testimony as such was not only tainted but unworthy of credit. P.W. Islamuddin was an independent witness but he did not support prosecution. He was declared hostile and cross‑examined. According to him, while he was passed from the place of incident, he saw one person lying injured. He gave help and made him to stand and on enquiry he was informed that Latif had given him hockey blow. The perusal of his evidence clearly shows that no one else was present and even assailants had fled away, as none was seen at Wardat. P.W. Abdul Ghani admittedly arrived at Wardat when 20‑25 persons had already collected and none from those acted as a witness. P.W. Risal Khan father of deceased is also not trustworthy because he is a person who did not remember the name of his sister and even denied litigation regarding ancestral property acquired against claim. If I.O. is believed that there were bloodstains on shutters of accused's shop, the possibility of accused having been attacked by the deceased Muhammad Islam and others cannot be ruled out. 1n that case the accused had a right of private defence, as they had received knife and Danda blows. The intention or knowledge of accused to cause injury that might result into death of Muhammad Islam is not manifest. The accused did not plead right of private defence, yet it is apparent from the facts and circumstances, that accused used hockey and sticks, while complainant party used knives and sticks. The accused seem to have exercised such right and the benefit of same should have been extended to them. The two accused Jamil and Shakil though armed with Dandas, named) in F.I.R., and alleged to have caused blows to Muhammad Islam have been acquitted and on same evidence appellant Latif is convicted. The benefit extended to the two acquitted accused should also have been extended to appellant. The whole case is shrouded in a mystery and the real facts about the incident have not come on record. There are infirmities and in‑coherent statements by interested witnesses. It was a case in which appellant was entitled to benefit of doubt and acquittal. The conviction in these circumstances cannot be sustained. The appellant is entitled to benefit of doubt which is extended to him. His appeal is allowed, conviction is set aside and he is acquitted. Cr. Revision application in these circumstances is dismissed. N.H.Q./A‑1199/K Appeal accepted.