2022 PLP 2466 (YLR)

ASJAD JAVAID GHURAL, J.

Through this criminal appeal under section 410, Cr.P.C. appellants Nawaz Ahmad and Fayyaz Ahmad have challenged the vires of judgment dated 26.11.2018 passed by the learned Additional Sessions Judge, Nankana Sahib in private complaint titled "Sikandar Ali v. Riaz Ahmad" under sections 302, 324, 337-A(i), 337-L(2) & 34, P.P.C. relating to case FIR 67/2016 .dated 27.02.2016, under sections 324, 337-A(i), 337-L(2) and 34, P.P.C., registered at Police Station, Faizabad District Nankana Sahib whereby they were convicted and sentenced as under:-- Under section 302(b)/34, P.P.C. Imprisonment for life each and to pay compensation of Rs.2,50,000/- each to the legal heirs of deceased under section 544-A, Cr.P.C. and in default thereof, to further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was extended to the appellants.

2. Complainant Sikandar Ali has preferred Criminal Revision No. 19215 of 2020 seeking enhancement of sentence of appellants/respondents Nos. 2 and 3 which shall be decided through this common judgment.

3. The prosecution story unfolded in the crime report (Ex.PE/1) registered on the complaint of Sikandar Ali (PW-4) is that on 26.02.2016 at about 04:00 p.m., he along with his brother Sajid Ali (deceased) was purchasing cigarette from a Khokha near Taxi Stand, Mandi Faizabad; when all of sudden, accused Riaz Ahmad (since acquitted) armed with pistol, Mumtaz Ahmad (since acquitted), armed with iron rod, Fayaz Ahmad and Nawaz Ahmad (appellants), both armed with batons, emerged there. Riaz Ahmad raised a Lalkara to kill them and made a straight fire shot, which did not hit anybody. Thereafter, they apprehended them and started beating with their respective clubs and iron rods. Mumtaz inflicted iron rod blow at the head of Sajid Ali, resulting into oozing of blood. Appellants Fayyaz and Nawaz, inflicted Danda blows at the head and other parts of body of Sajid Ali. Accused Mumtaz Ahmad inflicted iron rod blow at the left arm near the elbow of the complainant. On raising hue and cry, the eye-witnesses attracted at the spot and saved them from the clutches of the accused persons. Accused persons fled away from the spot while extending life threats. He along with his brother was shifted to RHC, Rehanwala, from where due to precarious condition of injured Sajid Ali, the doctor referred him to General Hospital, Lahore.

4. The case was registered on 27.02.2016 at 09:45 a.m., and in consequence thereof, Muhammad Akram, Inspector (CW-1) took all the necessary steps of investigation and after thorough investigation, declared accused Riaz Ahmad and Mumtaz Ahmad to be not involved/innocent in this case, which constrained the complainant to file private complaint.

5. Dr. Tafseel Ahmad, (PW-6) medically examined deceased Sajid Ali while in injured condition on 26.02.2016 at 04:15 p.m. and observed four injuries on his person, caused with blunt object. The probable duration between injuries and medical examination was 30 minutes to one hour. Sajid Ali succumbed to the injuries on 02.03.2016 in the hospital, whereupon, Dr. Abdul Malik (since retired) held autopsy. Dr. Muhammad Azhar Amin (PW-7) verified the signature and handwriting of said medical officer on the post mortem examination report No.17/2016 of deceased Sajid Ali. Dr. Tafseel Ahmad, (PW-6) also medically examined Sikandar Ali on 26.02.2016 at about 07:00 p.m. and observed swelling of 7 x 5 cm along with tenderness at posterolateral aspect of upper 1/3rd of left forearm, which had been caused with blunt object. The probable duration between injury and examination was 04 to 06 hours.

6. At the commencement of the trial, the learned trial Court had framed a charge against the appellants and their co-accused to which they pleaded not guilty and claimed to be tried.

7. The complainant examined eight witnesses, whereas 02-witnesess were produced as 'Court witnesses' besides attested copy of Medico Legal Certificate of Asif Ali (Ex.PS). The appellants and their co-accused, in their statements recorded under section 342, Cr.P.C., denied and controverted all the allegations of fact levelled against them, they neither opted to make statements under section 340(2), Cr.P.C. on oath, nor produced any evidence in their defence.

8. Learned trial Court, upon conclusion of the trial, acquitted co-accused namely Riaz Ahmad and Mumtaz Ahmad, whereas, convicted and sentenced the appellants in the above terms. Hence, this appeal.

9. Learned counsel for the appellants submits that the appellants are quite innocent and they have nothing to do with the alleged occurrence; that the eye-witnesses were chance witnesses, who could not establish their presence at the venue of occurrence at the relevant time; that the ocular account is in contradiction with the medical evidence; that the injury attributed to the appellants was equally attributed to their co-accused Mumtaz Ahmad, who has been acquitted of the charge by the learned Trial Court and as such the appellants also deserve for the similar treatment; that the prosecution has failed to produce cogent and reliable evidence to bring home the guilt of the appellants beyond shadow of a reasonable doubt. At the end, he has prayed for acquittal of the appellants.

10. Conversely, learned Law Officer appearing for the State assisted by learned counsel for the complainant has opposed with vehemence while submitting that the appellants are nominated in the crime report with specific role of causing injuries at the head and other parts of body of the deceased; that the eye-witnesses made consistent statements before the learned trial Court as to the specific role played by each accused during the occurrence, which is being supported with the medical evidence; that the Trial Court acquitted co-accused Mumtaz Ali, on account of his innocence by the investigating officer whereas, the appellants were found fully connected with the occurrence; that the recovery of "Sotas" has also been effected at the instance of the appellants; that the complainant has filed appeal against the acquittal of Mumtaz Ali and, thus, his acquittal has no consequences as to the conviction of the appellants; that presence of eye-witnesses at the place of occurrence at the relevant time was quite natural wherein the complainant himself received injuries at the spot; that there was no occasion for the prosecution to falsely implicate the appellants while letting off the real culprits in substitution. At the end, prayer for dismissal of the appeal has been made.

11. I have heard learned counsel for the appellants, learned Law Officer appearing for the State assisted by learned counsel for the complainant and gone through the record.

12. In order to prove the charge against the appellants, Rana Sikandar Ali, (PW-4), complainant/brother and Tahir Munir, (PW-5)/brother-in-law (Behnoi) of deceased Sajid Ali furnished the ocular account. The complainant while appearing in the dock of court room reiterated that on the fateful day at about 04:00 p.m. he along with his brother Sajid Ali was purchasing cigarettes from the shop situated at Mandi Faizabad when all of sudden, the appellants along with their co-accused emerged there, accused Riaz Ahmad raised a Lalkara to kill them and made a straight fire shot, which did not hit anybody. Co-accused Mumtaz Ahmad inflicted iron rod blow at the head of deceased Sajid Ali due to which it started oozing the blood. The appellants also inflicted Danda blows at the head and other parts of body of Sajid Ali. The complainant stepped forward to rescue his brother, upon which Mumtaz Ahmad inflicted iron rod blow at his left arm near elbow. On their hue and cry, Tahir Munir and Sher Muhammad attracted at the spot, rescued them. The eye-witnesses shifted them to a nearby hospital at Rehan Wala, wherefrom due to serious condition of Sajid Ali, he was referred to General Hospital, Lahore. Tahir Munir (PW-5) deposed with some variation qua the injury inflicted by accused Mumtaz Ali at the head of deceased Sajid Ali, which according to him busted severely and the blood was oozing.

13. This unfortunate incident had taken place at a Taxi Stand, Mandi Faizabad, which admittedly, was not the place the residence of the acclaimed eye-witnesses, and in that eventuality, it was incumbent upon them to furnish any solid reason in order to establish their presence at the spot at the relevant time. So far as presence of Tahir Munir (PW-5) at the place of occurrence is concerned, testimony of complainant (PW-4) has much significance, who after narrating entire episode of the incident with minute detail of role of each assailants, stated that on their hue and cry, many people including the eye-witnesses namely, Tahir Munir (PW-5) and Sher Muhammad (given up) attracted at the spot. If this part of statement of the complainant is taken as a true version, it depicts another picture that the aforesaid witness attracted at the spot when the occurrence was already over. Moreover, said witness was brother-in-law of the deceased as well as the complainant and in such a close relationship, it does not appeal to ordinary prudence and lead to presume that had he been present there at the relevant time, he does not receive any injury. In the attending circumstances, I am constrained to hold that the said witness was not present at the spot at the relevant time and he was planted subsequently in order to strengthen the prosecution story, being close relative of the deceased as well as the complainant.

14. So far as testimony of complainant is concerned, no doubt he claimed to have sustained injuries at the spot, however, stamp of injuries on his person is not sufficient to take his testimony as a gossip truth. He claimed to have sustained injuries at the hands of accused Mumtaz Ali (since acquitted) but he could not establish the same in his deposition before the learned trial Court and in consequence thereof, learned trial Court acquitted said Mumtaz Ali by disbelieving testimony of the eye-witnesses including the injured witness to that extent. It is trite principle of law that the testimony of an injured witness cannot be believed when he fails to establish the injuries on his own person against any of the accused. Reliance is placed on case reported as 'Ishtiaq Hussain and another v. The State and another' (2021 SCMR 15).

15. From the day one, it was the stance of the eye-witnesses in their statements recorded under section 161, Cr.P.C. as well as in their deposition before the learned trial Court that first injury at the head of the deceased was inflicted by accused Mumtaz Ali, due to which blood started oozing and thereafter, the appellants inflicted injuries at the head and other parts of the deceased's body. Tahir Munir (PW-5) goes on saying that "It is incorrect to suggest that the injury allegedly attributed to Mumtaz accused was not declared as a cause of death by the doctor during his autopsy." The accused to whom the fatal injury was assigned by the eye-witnesses, has been acquitted of the charge through the impugned judgment, which clearly shows that both the acclaimed eye-witnesses made false statement against the acquitted accused and when some part of their testimony is found false, the same shall be discarded as a whole as held by the august Supreme Court of Pakistan in case titled NOTICE TO POLICE CONSTABLE KHIZAR HAYAT SON OF HADAIT ULLAH on account of his false statement (PLD 2019 Supreme Court 527) wherein the principle of 'falsus in uno falsus in omnibus' false in one thing, false in everything has been reinforced in order to curb the tendency of our society of making false statement on oath before a court of law. Testimony of such witnesses cannot be accepted in a piece meal. So far as filing of PSLA against the acquittal of said accused is concerned, suffice it to observe that the same is still at motion stage and merely on account of filing of such petition it cannot be presumed that acquittal of said accused has been over turned.

16. The appellants were assigned the role of inflicting Sota blows at the head of the deceased. Similarly, co-accused Mumtaz Ali (since acquitted) was also specifically assigned the role of inflicting iron rod blow at the same locale of the deceased. Dr. Tafseel Ahmad (PW-6) medically examined the deceased in injured condition and observed four injuries at his person including two injuries at the head. Dr. Abdul Malik (since retired) held autopsy on the dead body of deceased and observed eight injuries at his person. Injury No.1 was found fatal wherein piece of bone separated from the skull top to left side. Hematoma and clotted blood on the left side of brain elevating parital, temporal, frontal bonds damaging underline brain. From the medical evidence, it is clear that both the injuries at the head of deceased were of almost at the same locale and there is only a difference of exerting force for causing such injuries, showing that both these injuries were caused by the same person with the same kind of weapon. With this backdrop, the medical evidence lends no support to the ocular account.

17. Co-accused Mumtaz Ali was equally assigned the role of inflicting iron rod blow at the head of deceased but he has already been acquitted of the charge by the learned trial Court by disbelieving the prosecution evidence to his extent and as such, the same cannot be believed to the extent of the appellants, having exactly identical role. Reliance is placed on cases titled "Shahbaz v. The State" (2016 SCMR 1763), "Tariq v. The State and others" (2017 SCMR 1672) and "Imtiaz alias Taj v. The State and others" (2018 SCMR 344). A ready reference may be made to the last one wherein it has been held as under:- "The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witness receive independent corroboration qua the other accused person ." The overall purview of the above discussion is that the ocular account furnished by the prosecution is not of such stature, which may be made basis to maintain the conviction and sentence of the appellants.

18. It is well settled law that when the ocular account is disbelieved, rest of the evidence, howsoever strong may be, being corroboratory in nature, cannot be made basis to maintain conviction and sentence of the accused and as such it needs not to be discussed in the particular facts and circumstance of this case. I seek guidance from case titled 'Mst. Sughra Begum and another v. Qaiser Pervez and others' (2015 SCMR 1142) wherein it has been held as under:- "It is cardinal principle of justice that ocular account in such cases plays a decisive and vital role and once its intrinsic worth is accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution. To the contrary, one the ocular account is disbelieved then no other evidence, even of a higher degree and value, would be sufficient for recording conviction on a capital charge therefore, we have to see the probative value of the ocular account in light of the facts and circumstances of the case."

19. Having scanned the entire prosecution evidence, a conclusion is inescapable that the prosecution has failed to prove its case against the appellants beyond shadow of reasonable doubt. The injury attributed to the appellants at the head of deceased was equally attributed to co-accused Mumtaz Ali, who has been acquitted of the charge by the Trial Court. The ocular account is inconsistent with the medical evidence. What to speak of a reasonable doubt, the case in hand is replete with doubts and its benefit would always favour the accused as a matter of right and not grace. Reliance is placed on case titled "Muhammad Akram v. The State" (2009 SCMR 230) wherein at page No.236, it has been held as under:- "It is an axiomatic principle of law that in case of doubt, the benefit of thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

20. For what has been discussed above, this appeal is allowed, the conviction and sentence of appellants Nawaz Ahmad and Fayyaz Ahmad are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They are directed to be released forthwith from jail, if not required to be detained in connection with any other criminal case. Criminal Revision No. 3206 of 2019

21. For the reasons mentioned hereinabove, since the appellants have been acquitted of the charge, therefore, instant petition seeking enhancement of their sentence has lost its relevance and the same stands dismissed in limine. JK/N-23/L Order accordingly.