1995 P Cr (PLP)

(6) Feeling pain with swelling on top of left shoulder joint. Injury No.4 on clinical examination was declared as grievous. Injury No.6 was simple and the rest were kept under observation and the injured was advised X‑Ray.

4. Dr. Muhammad Mazhar Iqbal P.W3 conducted post‑mortem examination on the dead body of Ahmad Bakhsh on 8‑1‑1982 and found 14 lacerated wounds thereon apart from a mid line incised wound on abdomen, 23 . c.m. in length and stitched. Probable time that elapsed between injuries and I death was within 6/7 days and between death and post‑mortem was within 20 hours. All the injuries were ante‑mortem. Injuries Nos.4, 5 and 6 (reproduced below), which were caused by fire‑arm were collectively sufficient to cause death: (4) A lacerated wound on right side of abdomen, 4 c.m. from midline, 2 c.m. below and medical to tip of 9th costal cartilage, 2 c.m. x 1 c.m. (5) A lacerated wound on left side of abdomen, 8 c.m. from mid‑line, 4 c.m. below and medial to tip of 9th costal cartilage, 1 c.m. x 1 c.m. (6) 2 c.m. below the 5th wound, there was a lacerated wound 1/2 c.m. x 1/2 c.m.

5. The prosecution in support of its case examined 16 witnesses. Out of these witnesses. Ghulam Abbas P.W.9, Manzoor Ahmad P.W.10 and Abdul Ghafoor P.W.11 gave the ocular version of the incident. Dr. Muhammad Mazhar lqbal P.W.3 conducted post‑mortem examination on the dead body of Ahmad Bakhsh deceased, whereas Dr. Javed Hassan P.W.12, examined Manzoor Ahmad P.W.10 Abdul Ghafoor P.W.11 and Mannu Khan accused and also conducted post‑mortem examination on the body of Ghulam Muhammad deceased. Muhammad Aslam, A.S.I. P.W.16, Zia Feroze, Inspector P.W.4 and Barkhurdar Ahmad S.H.O. (P.W.15) partly investigated the case. Khurshid Ahmad, Patwari was examined as C.W.1.

6. The accused in their statements under section 342, Cr.P.C. recorded on 5‑4‑1984, denied the prosecution allegations. Except Manau Khan, the remaining three accused professed innocence and stated that they had been involved falsely. However, Mannu Khan accused made the following statement from the dock: "Ahmad Bakhsh deceased had come to my house at about 4‑30 p.m. and had induced me to go to the field on the pretext of demarcation. Ahmad Bakhsh deceased and Ghulam Muhammad deceased alongwith Manzur Ahmad and Abdul Ghafoor P.W s. etc. attacked me causing seven grievous injuries. On my alarm Saleem and Jamil were attracted. They fired at my assailants to save me from being killed. The remaining details of the occurrence is contained in my complaint, a copy of which bas been exhibited as Exh. P.Y." Mannu Khan produced six witnesses in defence, namely, Noor Ahmad D.W.1, Muhammad Usman D.W.2, Dr. Mahmood‑ul‑Hassan D.W.3, Dr. Javed Ahmad Kamran D.W.4, Muhammad Hussain F.C. D.W.5 and Haji Muhammad Iqbal, Nursing Orderly Civil Hospital, Alipur D.W.6. He also tendered in evidence certified copy Exh. D.K. of the statement of Dr. Bashir Ahmad, Orthopaedic Surgeon, Quaid‑e‑Azam Medical College, Bahawalpur, recorded in the complaint case filed by Mannu Khan against the complainant party and also the certified copy of registered sale‑deed, dated 14‑9‑1981.

7. The learned Sessions Judge, Bahawalpur, who tried the accused, by his judgment, dated 26‑8‑1984, convicted them under section 302/34, P.P.C. on two counts and sentenced them to suffer death on each count plus fine of Rs.5,000 each or in default to suff6r further R.I. for one year. He further convicted them under section 307/34, P.P.C. on two counts and sentenced them to undergo R.I. for three years and fine of Rs.1,000 or in default to undergo R.I. for three months under each count. It was directed that the amount of fine awarded under section 302/34, P.P.C. if recovered be paid to the legal heirs of the deceased and the amount of fine imposed under section 307/34, RP.C. if recovered be paid to Manzoor Ahmad and Abdul Gfiafoor P.Ws. as compensation under section 544‑A, Cr.P.C. The convicts challenged their convictions and sentences awarded to them by the learned Sessions Judge, through Criminal Appeal No.76 of 1984 and the learned Sessions Judge also referred the case to this Court (High Court) under section 374, Cr.P.C. for confirmation of death sentence. Both these matter alongwith the criminal revision fled by the complainant came up for hearing before a Division Bench of this Court on 3‑11‑1987 and the learned Judges of this Court accepted the appeal, set aside the convictions and sentences of the appellants and remanded the case to the learned trial Judge, with the following observations: " .... We find that the dying declaration Exh. P.U. allegedly made by Ahmad Bakhsh deceased before Muhammad Aslam, A.S.I. P.W.16 has been believed and acted upon in convicting the appellants although their attention to this crucial piece of evidence was not drawn and no explanation thereof was sought from them at the time of their examination under section 342, Cr.P.C. it is, by now, well‑settled that an accused person has to be given an opportunity, under the law to explain the evidence on which his conviction is sought to be or going to be based. This is a mandatory requirement under section 342, Cr.P.C., which could not be ignored. It is wholly, against the provision of Criminal Procedure Code and principle of natural justice that a person/accused should be convicted on the basis of something of which he was not given notice and to which he was never required to give explanation. In the peculiar circumstances of the case, we are convinced that failure on the part of the Court to draw the attention of the accused/appellants to the dying declaration which has been used against them and has also been acted upon, has caused prejudice to them and has also resulted in miscarriage as well as failure of justice, and as such, it is a case of naked illegality.... ... The upshot of the above discussion is that there being no satisfactory basis to uphold the convictions and sentences of the appellants, the same are set aside and the case is remanded for retrial from the stage of examination of the accused under section 342,

8. After the remand, the trial was started by the learned Sessions Judge, Bahawalpur, who recorded the statements of the accused on 6‑2‑1988 under section 342, Cr.P.C. The accused took up almost the same stance as was taken by them in their earlier statements dated 5‑4‑1984. However, with regard to the statement Exh P.U. made by Ahmad Bakhsh deceased regarding the cause of his injuries to Muhammad Aslam, A.S.I. (P.W.16) on 2‑1‑1982, Mannu Khan explained as under: "In fact, Muhammad Aslant, A.S.I. had been heavily bribed by Ghulam Abbas P.W. and the complainant party. He had prepared a false document at a late stage to strengthen the prosecution case. No medical, certificate about the stage of his consciousness and fitness had been obtained by Muhammad Aslam, A.S.I. before preparing that document. Ahmad Bakhsh had lived for a number of days and he did not make any effort to get any statement of Ahmad Bakhsh recorded through an officer of the Court." Thereafter, on the application moved by Manzoor Ahmad complainant before this Court, the case was transferred from the Court of learned Sessions Judge, Bahawalpur to the Court of Sessions Judge, Multan, vide order, dated 6‑3‑1988. The defence evidence was thus recorded by the learned Sessions Judge, Multan, and the accused in their defence produced Dr. Javed Ahmad Kamran D.W.1, Muhammad Aslam D.W.2, Muhammad Aslam S.I. D.W.3 and Muhammad Ayub D.W.4. However, Noor Ahmad and Muhammad Usman, who appeared as D.W s. l and 2, respectively, before the remand order of this Court, were not produced by the accused. However, before the judgment, could be announced, one of the accused, namely, Abdul Malik died in Nishtar Hospital, Multan, on 29‑11‑1989 and with respect to his death statement of Muhammad Anwar, Assistant Superintendent, District Jail, Multan, was recorded on 20‑12‑1989, who also produced the original death certificate of Abdul Malik, issued by the Incharge of Ward No.12, Nishtar Hospital, Multan.

9. The learned Sessions Judge, Multan after analysing the entire evidence, doubted the recovery of pistols and gun and also the crime empties, on the ground of inordinate delay in despatching it to the Forensic Science Laboratory. He also did not rely upon the evidence of abscission of Faryad Ali accused. He also discarded the defence evidence and relying on the prosecution evidence, convicted Faryad Ali, Mannu Khan and Waris Ali under section 302/34, P.P.C. on two counts. Faryad Ali was sentenced to suffer death on each count and fine of Rs.10,000 on each count or in default to undergo R.I. for one year under each count, whereas Mannu Khan and Waris Ali were sentenced to imprisonment for life under section 302/34, P.P.C. on two counts and fine of Rs.10,000 on each count or in default to undergo R.I. for one year under each count. The fine, if recovered was ordered to be paid to the legal heirs of two deceased, namely Ghulam Muhammad and Ahmad Bakhsh in equal shares as compensation under section 544‑A, Cr.P.C. The learned trial Judge further convicted the three accused, under section 307/34, P.P.C. on two counts and sentenced them to undergo R.I. for three years under each count and also to fine of Rs.1,000 each under each count, failing which to undergo R.I. for three months. The fine, if realised was ordered, to be paid to Manzoor Ahmad and Abdul Ghafoor P.W s. in equal shares as compensation under section 544‑A, Cr.P.C. Abdul Malik alias Cheeku died before the announcement of the judgment, soothe case against him stood abated. This is vide judgment dated 16‑5‑1990.

10. The three convicts filed Criminal Appeal No.86 of 1990, jointly. Faryad Ali also challenged his convictions and sentences through jail, which was registered as Criminal Appeal No.92 of 1990. The learned Sessions Judge has also referred the case to this Court under section 374, Cr.P.C. for confirmation of death sentence of Faryad Ali alias Faiz, which was registered as Murder Reference No.59 of 1991. We propose to dispose of all the three matters by this judgment.

11. The learned counsel for the appellants contended that the F.I.R. was lodged after inordinate delay and that too after preliminary investigation; hence no sanctity is attached to this dubious document, the motive, though alleged, yet has not been proved, which adversely affects the prosecution case as a whole and males the case of doubtful character, the eye account was furnished by highly interested and inimical witnesses and they made material improvements in their statements before the 'Court, hence their statements cannot be believed, especially when their evidence is being negated by the medical evidence, the positive report of the Forensic Science Laboratory cannot be used as corroborative piece of evidence, as the crime empties were sent to the Forensic Science Laboratory after the recovery of alleged weapon by one parcel; hence it would not be safe to rely upon that piece of evidence. Learned counsel further urged that it is a case of two versions, one version has been given by the prosecution whereas the other version has been advanced by the defence and the latter version is more plausible and nearer to truth, as Mannu Khan appellant received injuries dourine the transaction which remained unexplained. Even if the prosecution story is accepted as gospel truth still no case under section 302, P.P.C. is made out, at the most it may be case of individual liability and exceeding of right of self‑defence. The injuries received by Ahmad Bakhsh, were not sufficient to cause death. On the contrary, he died due to the negligence of the doctor, who attended him in the hospital after his admission in the hospital. The statement of Ahmad Bakhsh Exh P.U., which was recorded by Muhammad Aslam, A.S.I. (P.W.16) cannot be treated as a dying declaration, as it does not fulfil the prerequisite of the dying declaration, hence the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellants and they are entitled to the acquittal:

12. The learned counsel for the State has supported the judgment of conviction.

13. We have examined the respective submission‑of the learned counsel for the parties minutely and have carefully gone through the entire record with their able assistance. The sole ground on which the learned counsel tried to prove that the F.I.R. was registered after considerable delay and preliminary investigation is that in the inquest report and injury statement of Ghulam Muhammad deceased, F.I.R. number is not given. We have examined this aspect carefully and we find that negligence on the part of the Investigating Officer of non- mentioning of the F.I.R. number in the inquest report would not be sufficient by itself to infer that the F.I.R. was recorded after preliminary investigation. The delay of lodging the F.I.R. after six hours of the occurrence is not fatal to the prosecution case, especially when the occurrence took place at a distance of 21 km. from police station hence some time was consumed by the complainant to approach the police station for lodging the FIR, especially when he was himself injured in the occurrence. In the circumstances the F.I.R. seems to have been lodged with promptitude, which excludes the possibility of deliberation and manipulation.

14. Admittedly, it is a case of two versions, one version has been given by the prosecution, whereas the other version has been advanced by the defence, particularly Mannu Khan appellant who allegedly sustained injuries during the transaction. The salutary principle for the just decision of the case of two versions is that the Court has to put both the versions in juxtaposition and then the Court has to see which version is more plausible and nearer to truth, subject, of course with the condition that onus of proof always remained on the prosecution. Applying the aforesaid principle of law to the facts of this case, we find that the prosecution case is being supported by three eye‑witnesses, namely Ghulam Abbas P.W.9, Manzoor Ahmad P.W.10 and Abdul Ghafoor, P.W.11, out of whom the latter two are injured and their presence at the spot cannot be doubted. Neither any question was put to the doctor who medically examined them nor any suggestion was made to them that the injuries sustained by them were self‑suffered. As the occurrence, took place in the day time so there cannot be any possibility of mistaken identification of the accused. The F.I.R. was lodged with great promptitude in which specific role of each accused was mentioned. Over and above this, due to the motive mentioned in the F.I.R., the appellants are vicariously liable for the act of the principal accused. There is no force in the submission of the learned counsel that the motive though alleged could not be proved, because it has been proved by the eye‑witnesses, who were present at the spot in the morning time when private demarcation was being conducted by Khurshid Ahmad, Patwari C.W.1, in which after altercation, the accused party issued threats to the complainant party that they would take revenge of this insult. It is true that Khurshid Ahmad C.W.1 has not supported the prosecution case on this count, but it is pertinent to note that the complainant Manzoor Ahmad moved an application against the said Patwari to the Anti‑Corruption Department for taking disciplinary 4action against him and this may be the reason with Khurshid Ahmad, Patwari not to support the prosecution case. Anyhow, the evidence of the eye‑witnesses is sufficient to prove the motive and we approve the finding of the learned trial Judge. The contention of the learned counsel for the appellants that the eye witnesses made material improvements in their evidence before the trial Court is not tenable, because minor discrepancies do occur here and there in the evidence of moved natural and truthful witnesses due to lapse of time and different perception by different persons. The sole point on which the edifice of this contention stands is that Jandhara, an implement of the agriculturist, whereby the eye witnesses were setting the Watt was not taken into possession by the Investigating Officer. The negligence on the part of the Police Officer would not make the evidence of the eye‑witnesses incredible. The other argument of the learned counsel is that Ahmad Bakhsh was facing towards the north while Ghulam Muhammad was facing towards the south when the attack was opened. We are afraid these contradictions are too nice to be taken into ' consideration in an incident in which so many persons took part armed with fire‑arm and thereby killed two persons especially in the day time. The trial Court rightly rejected the defence plea that Mannu Khan received injuries in the second transaction, because in the normal course of events if Mannu Khan was injured, he should have been taken to the police station, but instead he was taken to Alipur Hospital. Even after the remand of the case, the appellants did not examine Noor Ahmad and Muhammad Usman and only examined Dr. Javed Ahmad Kamran D.W.1, Muhammad Aslam D.W.2, Muhammad Aslam, S.I. D.W.3 and Muhammad Ayub D.W.4. These witnesses on the basis of documentary evidence tried to explain the injuries sustained by Mannu Khan. It is pertinent to note that Mannu Khan for the first time filled complainant Exh. P.Y. on 19‑5‑1982, four months after the occurrence two important witnesses Saleem and Jamil who allegedly caused injuries to the two deceased and the injured witnesses were not examined before the trial Court. These infirmities, per se, are sufficient to make the defence version as fabricated and worthless. It is on the record that Mannu Khan got himself medically examined after 20/24 hours of the occurrence and there is no ostensible explanation on the record to show why he did not immediately approached the police or the doctor. On the contrary, there is evidence that Mannu Khan was arrested on the third day after the occurrence. No doubt, there is obliging statement of Muhammad Aslam, A.S.I. that he posted the guard on the first day. Even this witness could not explain that when he had posted the guard, then why he did not get him medically examined, which is the requirement of law. Mannu Khan has not taken this defence plea at the earliest opportunity. In the presence on this material, the learned trial‑Judge rightly discarded the defence version. However, we find great force in the submission of the learned counsel for the appellants that statement Exh. P.U. of Ahmad Bakhsh deceased recorded on 2‑1‑1982 by Muhammad Aslam, A.S.I. under section 161, Cr.P.C. does not fulfil the basic conditions laid down for treating a statement as dying declaration; hence we exclude that statement of Ahmad Bakhsh from consideration. Even if the statement Exh Y.U. of Ahmad Bakhsh is excluded still the prosecution has proved its case against the appellants beyond reasonable doubt.

15. We have given our anxious consideration to this aspect of the case, what offence the appellants actually committed in the transaction even if the prosecution case is believed. It is in evidence that the appellants were armed with pistols and guns and they opened attack on unarmed persons. After discarding the defence version, we are left with the prosecution version and there is no evidence on the record, which would bring the case of the appellants within the exceptions of section 300, P.P.C. Thus, we find no force in the appeals of the appellants and the same are hereby dismissed. The sentence of death of Faryad Ali alias Faiz‑is confirmed and the reference is answered in the affirmative. Waris Ali and Mannu Khan appellants are on bail. They should surrender to their bail bonds to serve out the remaining portion of their sentence. They shall be entitled to the benefit of section 382‑B; Cr.P.C. N.H.Q./F‑165/L Appeals dismissed.