2006 PLP 2010 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.467 of 2000 filed by Ghulam Yasin and Criminal Appeal No.504 of 2000 filed by Mst. Samina alias Nasrin and Mst. Gulzarin, who were convicted and sentenced by the learned Additional Sessions Judge, Multan, vide his judgment dated 29-9-2000 as under:

Ghulam Yasin and Mst. Samina alias Nasrin Death each with compensation of Rs.50,000 each or in default thereof six months' S.-I. under sections 302(b)134, P.P.C. Mst. Gulzarin Fourteen years, R.I. with Diyat amounting to Rs.2,60,000 under section 308, P.P.C. and compensation of Rs.50,000 or in default thereof six months' S.-I. under section 308(2), P.P.C. Murder reference No.371 of 2002 for confirmation or otherwise of death sentence of appellants and Criminal Revision the 28 of 2001 filed by Ayyaz Khan-complainant, whereby he seeks enhancement of sentence awarded to Mst. Gulzarin-respondent No.2 shall also be replied/decided through this single judgment.

2. Succinctly, the facts of the instant case per F.I.R. Exh.P.C., as narrated by Ayyaz Khan/complainant (P.W.10), are that: -- "Manzoor Ahmad is his real Mamun. He is putting up in Basti Siyalanwali, yesterday morning the complainant along with Muzamal Hussain came from Tehsil Jatoi to Multan to visit his Mamun. He reached here at about Maghribwela. Rasheed Khan P.W.11 Dammad of said Manzoor deceased also arrived there for a visit. All the three witnesses went to sleep on the roof of the house whereas Manzoor deceased, accused Mst. Gulzarain his wife, slept inside the room and accused Mst. Samina alias Nasrin the daughter of deceased slept in the courtyard along with other children. At about 1-00 a.m. by hearing noise of Save Save all the P.Ws. came down, found the door of the room to be lying open and the electric light to be on. Said Mst. Gulzarin and Ghulam Yasin accused persons were carrying silver Patilas in their hands with acid inside. They had already thrown acid on the deceased Manzoor and even in view of these witnesses put acid on the deceased, whereas accused Mst. Samina alias Nasrin put acid on her father Manzoor from plastic can. The P.Ws. tried to approach them but they remained away under the threats of the accused that they shall throw acid on them even, so all the accused decamped therefrom with their untensils. The P.Ws. tried to lookafter Manzoor deceased who was burnt. The hue and cry attracted the neighbours even. Manzoor was shifted to Nishtar Hospital, Multan, along with Abdul Majeed, Muhammad Rasheed P.W.11 and Muzamal Hussain. It is also narrated that Manzoor deceased desired to marry her daughter Mst. Samina alias Nasrin in Mouza Jatoi. As against it, the accused Mst. Gulzarin and Mst. Samina were not agreeing to this proposal. They intend to marry with accused Ghulam Yasin, so they with their common intention to kill him, have injured Manzoor."

3. After registration of formal F.I.R., the investigation of the case was taken over by Fateh Muhammad, S.-I./P.W.12. He took over the dead body of the deceased in the Hospital, prepared injury statement Exh. P. G. and inquest report Exh. P. H. During his spot inspection, he took into possession Rakh (ash) from the room vide memo. Exh. P, K. He also took into possession burnt blanket P.4, pillow P.5, Chaddar P.6, Gadda P.7, Dohar P.8, Chaddar P.9, bed hardboard P.10 vest P.11 and Shalwar of Manzoor Ahmad-deceased p.12 vide memo. Exh.P.L. On 8-5-1999 he arrested Mst. Gulzarin and Mst. Samina alias Nasrin and took into possession their burnt clothes. At the instance of both the ladies the Investigating Officer recovered silver patila P.17 and plastic can P.18 of acid from the house of Muhammad Khan, brother of Mst. Gulzarin and took the same into possession vide memos. Exh.P.O. and Exh.P.Q. respectively. Thereafter the Investigating Officer produced both the ladies before the Medical Officer, Civil Hospital, Multan, for their medical examination. He also prepared injury statement of Mst. Samina Exh.P.U. and injury statement of Mst. Gulzarin Exh.P.V. After transfer of P.W.12, Shah Nawaz, S.-I./P.W.14 conducted the further investigation. On 31-5-1999 he arrested Ghulam Yasin, who, while in police custody, led to the recovery of Patila silver P.19, shirt p.20, shalwar P.21. All the articles were taken into possession vide memo. Exh.P.R. After completion of investigation the accused were sent up to face trial.

4. At the trial, the prosecution in order to prove its case produced 14 witnesses, in all, thereafter, learned D.D.A. tendered in evidence report of Chemical Examiner Exh.P.Z. and closed the prosecution case. In their statements recorded under section 342, Cr.P.C. all the accused pleaded false implication. After conclusion of the trial, the accused were convicted and sentenced as mentioned above.

5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. and other relevant material available on record, the learned counsel for the appellants in support of both the appeals submits that the eye-witnesses produced by the prosecution are cooked up witnesses; that they were summoned latter on; that the story was concocted and then the F.I.R. was lodged; that all the three accused also received acid burns on their bodies but their injuries were suppressed; that had the eye-witnesses were present at the spot they must have described about the injuries of the three appellants; that Mst. Gulzarin had filed complaint from Jail against the complainant party and his witnesses, which was tried by the learned Additional Sessions Judge, who had held the trial and decided the complaint in the present case with one judgment, which is against the principles laid down by the apex Court as well as this Court, so at this stage it would not be proper to remand the case as seven years have already elapsed when the occurrence had taken place. Thus, the appellants are entitled to acquittal.

6. On the other hand, the learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant submits that the appellants are named in the F.I.R.; that the deceased was the husband of Mst. Gulzarin and father of Mst. Samina, while Ghulam Yasin was their neighbour; that the motive in. the occurrence was that Mst. Samina wanted to marry with Ghulam Yasin, on which her mother Mst. Gulzarin was agreed and her father Manzoor Ahmad-deceased strongly opposed the proposal; that four days prior to the occurrence an altercation took place and the accused with common intention of committing murder of the deceased threw acid upon him; that the eye-witness namely Ayyas Khan P.W.10 nephew of the deceased and Muhammad Rahseed Khan P.W.11 son-in-law of the deceased have fully supported the prosecution case; that it is a case of promptly lodged F.I.R.; that all the prosecution witnesses have supported the prosecution case; that the private complaint filed by Mst. Gulzarin was dismissed; and that he has no hesitation to submit that the learned Judge was not legally competent to dispose of the complaint filed by Mst. Gulzarin (one of the appellants) by dismissing the same in a challan case in which she and her co-accused have been convicted with one judgment.

7. We have heard the learned counsel for the parties at length and scanned the entire record of the case minutely. The occurrence had taken place on 6-5-1999 at 1-00 a.m. Complaint was recorded at Chowk Salekhana at 2-00 a.m. and the formal F.I.R. was lodged at 2-10 a.m. on the same date. The distance between the place of occurrence and the police station was 1/2 km. The deceased in this case is Manzoor Ahmad Khan, father of Mst. Samina alias Nasrin and husband of Mst. Gulzarin appellants, while Ghulam Yasin appellant was their neighbour. In the instant case F.I.R. was lodged by Ayyaz Khan, who was resident of Muzaffargarh and termed himself as maternal nephew of the deceased. The place where the occurrence took place is 20/25 Kms. away from Muzaffargarh. The other witness Rasheed A Khan is son-in-law of both Mst. Gulzarin and the deceased. Mst. Gulzarin and Mst. Samina were arrested on 8-5-1999, while Ghulam Yasin was arrested on 31-5-1999. During the course of investigation Ghulam Yasin and Mst. Gulzarin led to the recovery of silver "patilas", while a plastic can was recovered at the instance of Mst. Samina.

8. The motive behind the occurrence is that Mst. Samina wanted to marry with Ghulam Yasin co-accused. Her mother Mst. Gulzarin was agreed but her father Manzoor Ahmad-deceased was opposing their marriage. On this ground a quarrel had taken place. Manzoor Ahmad was on the one side, while Mst. Gulzarin and Mst. Samina were on the other side.

9. In the instant case Dr. Muhammad Samad P.W.6 on 6-5-1999 at 1-30 a.m. medically examined Manzoor Ahmad. He found burnt injuries on his person. While Dr. Nasir Javed P.W.7 conducted the post-mortem examination on the dead body of Manzoor Ahmad on 6-5-1999 at 5-15 p.m. There is a very very important aspect of the case i.e. all the three appellants also received burnt injuries on their person. Lady Dr. Rashida Soharwardi appeared as P.W.13 and stated that she had medically examined Mst. Gulzarin and Mst. Samina on 8-5-1999 at 1-00 p.m. Dr. Aslam Mehmood P.W.5 on 31-5-1999 at 7-00 a.m. medically examined Ghulam Yasin. All of them had received acid burnt injuries on different parts of their persons. For the just decision of the case we would like to reproduce the injuries: Manzoor Ahmad-deceased (1) A deep burn of the whole of the scalp. (2) A deep burn of the whole of the face with the loss of vision of both eyes. (3) A deep burn over the whole of the chest. (4) A deep burn over the whole of the abdomen. (5) A deep burn over the right upper and forearm. (6) A deep burn over the left upper and forearm. (7) A deep burn over the right thigh and lower leg. (8) A deep burn over the left thigh and lower leg. (9) A deep burn over the back of the chest. The injuries sustained by Mst. Gulzarin-appellant are also reproduced hereunder:-- "Superficial chemical burnt on the whole upper part of the back impaches. Superficial chemical burnt to the whole right back impaches superficial chemical burnt 4 c.m. x 3 c.m. on the back of left elbow. Superficial chemical burnt 7 c.m. x 4 c.m. on the left breast on the upper and outer part impaches. Superficial chemical burnt on the right side of abdomen 8 c.m. x 7 c.m. impaches. Multiple chemical burnt parch on the right arm forearm on its front and back side. All injuries were kept under observation and referred to Surgeon for treatment. These injuries caused within three days caused by chemical burnt."

10. Most of the injuries on her person are of the nature in which no one can say that these could be caused while Mst. Gulzarin was throwing acid on the person of Manzoor Ahmad. These injuries have been suppressed by the first informant in c the F.I.R. and also by the eye-witnesses in their statements recorded under section 161, Cr.P.C. They also not stated before the learned trial Court that while throwing acid on Manzoor Ahmad, the appellants received burnt injuries. So it was dishonest improvement on their part.

11. It is a settled principle of law that when there are two versions of occurrence and even the injuries sustained by the accused persons have been suppressed, then the benefit of doubt should be granted to the accused.

12. It has been argued that the learned trial Judge has decided the challan case with complaint case through a consolidated judgment, which is not permissible in law and this fact has not been denied by the learned counsel for the complainant. At this stage we are also in agreement with this contention of the learned counsel for the parties but in our considered view it will not be better and in the interest of justice if after six years this case is remanded back and the learned successors of the trial Court, who had not passed the impugned judgment, is directed to hear the arguments of both the sides in the complaint case and the challan case separately and decide the same through separate judgments. The learned Judge who decided the instant case has already been retired, as we are told.

13. So while granting benefit of doubt to the appellants namely Ghulam Yasin, Mst. Gulzarin and Mst. Samina alias Nasrin their appeals are accepted. Their conviction and sentence is set aside. They are acquitted of the charge. They would be I released from Jail forthwith, if not required in any other case. Death sentence awarded to the Ghulam Yasin and Mst. Samina alias Nasrin-appellants is not confirmed. Murder Reference is replied in the negative.

14. For reasons stated above, the criminal revision is dismissed. H.B.T./G-15/L???????????????????????????????????????????????????????????????????????????????????? Appeal allowed.