1997 P Cr (PLP)

4. At the trial, the prosecution had examined as many as eleven witnesses and tendered in evidence the report of Chemical Examiner Exh. P.A.A. and that of Serologist Exh. P.B.B. to prove its case, while giving up Ata Muhammad, Shah Rasool and Abdul Ghafoor P.Ws. being unnecessary.

5. P.W.1 Dr. Asghar Ali on 12-3-1984 had medically examined Shah Bahrain deceased when lie was in injured condition and found the following injuries on his person:-- (1) A contused swelling 6 c.m. x 4 c.m. on the left side of head on temporal bone 1.5 c. m. above the left ear. (2) A lacerated wound 3 c.m. x c.m. on the right side of front of head 3c.m. above their hair line. Both the injuries were kept under observation On the same day he medically examined Abdul Sattar injured P.W. and found the following injuries on his person:-- (1) A lacerated wound 6 c.m. x .5 c.m., scalp deep on the top of head, slightly on the right side 11 c.m. above the right ear. (2) An abrasion .25 c.m. x .25 c.m. on the middle of back of right index finger. This doctor on 15-3-1984 had also medically examined Muhammad Zaki, Said and Sabir Ali accused and had found four, two and five injuries respectively on their persons. According to him, except for injury No.4 caused to Sabir Ali accused, all the injuries on the persons of the above-named three accused were simple in nature.

6. P.W.8 Dr. Akbar Saeed on 13-3-1984 had conducted the post-mortem examination on the dead body of Shah Bahrain and found the following injuries on it:-- (1) A lacerated wound 3-1/2 c.m. x 1/2 c.m. x scalp deep on the right side of the head 3 c.m. above the hair line and 2 c.m. away from the middle of skull with swelling around 5 c.m. x 7 c.m. (2) A contused swelling 6 c.m. x 6 c.m. on the left side of head involving the frontal and parietal regions, 1.5 c.m. above the left ear. In his opinion death had occurred due to shock and intra carnial haemorrhage as a result of both the injuries, which were sufficient to cause death in the ordinary course of nature individually as well as collectively. Probable time between the injuries and death was assessed to be 12 to 18 hours and that between death and autopsy was about 12 hours.

7. P.W.2 Manzoor Ali, Moharrir, had kept the sealed parcel containing blood-stained clothes of Sabir Ali, Muhammad Zaki and Said accused intact in Malkhana till 23-3-1984, whereas P.W.3 Dil Muhammad, Constable had transmitted the same to the office of Chemical Examiner on the said date. P.W.4 Ali Naqi, Constable had escorted the dead body of Shah Bahrain to the mortuary and after the post-mortem examination had handed over the papers and last-worn clothes of the deceased to the Investigating Officer, which he had received from the doctor.

8. P.W.5 Muhammad Rafique complainant and P.W.6 Abdul Sattar had supported the prosecution case by reiterating the contents of the F.I.R. and corroborating the statements of each other. P.W.7 Muhammad Sadiq was the recovery witness of Dangs P.3, P.4, P.5, P.8 and P.11 vide memos. Exhs. P.J., P.K., P.L., P.N. and P.P. recovered from Abdul Wahid, Muhammad Hassan, Sabir Ali, Said and Muhammad Zaki accused respectively. This witness had also attested the recovery memos. Exh. P.M. regarding blood-stained clothes P.6 and P.7 of Sabir Ali accused, Exh. P.O. in respect of blood-stained clothes P.9 and P.10 of Said accused and Exh. P.Q. regarding blood-stained clothes P.12 and P.13 of Muhammad Zaki accused/appellant.

9. P.W.9 Javed Islam, A.S.-I and P.W.11 Muhammad Jaffar, S.I./ S.H.O. had partially investigated the instant case, whereas P.W.10 Bashir Ahmad, Revenue Patwari had prepared the site plans of the place of occurrence Exhs. P.R., P.R./1 and P.R./2.

10. The appellants in their statements recorded under the provisions of section 342, Cr.P.C. had denied the charge and claimed to be innocent. Abdul Wahid and Muhammad Hassan appellants had deposed that they were not present at the time and place of occurrence and that they were falsely involved in the instant case due to enmity. According to the appellants and their co-accused Sabir Ali, Shah Bahrain deceased had tried to outrage the modesty of Mst. Barkat Bibi wife of Said appellant, on whose alarm both the parties were attracted to the spot and a free fight took place, in which persons from both the parties were injured. Therefore, because of the death of Shah Bahrain they had been falsely involved in this case. The appellants produced in defence Dr. Zahida Khanum as D.W.1 and Dr. Asghar Ali as D.W.2 to support their plea of having received injuries by Mst. Barkat Bibi and Sabir Ali, co-accused. The appellants also appeared as their own witnesses under section 340(2), Cr.P.C. and reiterated their previous statements.

11. The learned trial Court, taking into consideration all the facts and circumstances of the case, had convicted and sentenced the appellants, as stated above, whereas their co-accused Sabir Ali had died during the trial.

12. The learned counsel for the appellants, the State and the petitioner in the connected criminal revision petition were heard at length and the record of the case minutely perused with- their assistance.

13. The learned counsel for the appellants contended for setting aside of the impugned judgment and submitted that the case against the appellants was of no evidence. In this respect, pointed out that of the two eye-witnesses of the occurrence i.e. complainant P.W.5 Muhammad Rafique and injured P.W.6 Abdul Sattar, the testimony of the former is riddled with such improvements and contradictions duly established by confrontation during his cross-examination, that it has to be discarded in its entirety, whereas the testimony of the latter i.e. P.W.6 Abdul Sattar, though of an injured witness, does not advance the case of the prosecution to support the charge against the present appellants as the said witness in the first instance had categorically stated during his cross-examination that his statement had not been recorded by the police under section 161, Cr.P.C., and that, therefore, in accordance with the established principles of law applicable thereto, his testimony has to be discarded as well; and that secondly, his testimony has been totally discredited in respect of very relevant and important particulars i.e. pertaining to his version of the occurrence. In this respect, further pointed out that the said P.W.6 had changed his version in that respect by stating that he had not accompanied the deceased Shah Bahrain to check the decrease in the flow of irrigation water or being present at the time when the altercation between the said deceased and one Mst. Barkat Bibi had taken place. Further submitted that the said two eye-witnesses had suppressed the injuries suffered by the accused party which creates serious doubts about the veracity of their testimony and as such their evidence cannot be relied upon without independent corroboration which is in any case not forthcoming in the instant case. Further argued that it is in the evidence of P.W.11 Muhammad Jaffar, S.-I. and Investigating Officer of the case that the accused had taken the plea of free fight between the parties, resulting in injuries to persons of both sides right from the very beginning of the investigation of the case, that further strengthens the version of the defence and successfully impugns the prosecution version as set up. Further submitted that there was no evidence on the record either to prove that the complainant party was irrigating its field as claimed, or that Mst. Barkat Bibi had diverted the water for irrigation to her own field, or that the blood had been recovered from the spot to establish that the occurrence had taken place in the manner or at the place claimed by the prosecution witness. Further submitted that the injuries suffered by the deceased Shah Bahrain have been attributed to the appellants, namely, Abdul Wahid and Muhammad Hassan, who are not injured, thus raising serious doubt about their being present at the place of occurrence, and that in any case injured P.W.6 Abdul Sattar has admitted in his cross-examination that Muhammad Hassan was a prosecution witness against him in a criminal case registered prior to the present occurrence, and that both the principal accused/appellants had categorically stated in their statements recorded under subsection (2) of section 340, Cr.P.C. that they were not present at the time and place of occurrence in question. Further submitted that as the Sotas allegedly recovered from the accused are not blood-stained, therefore, they failed to support the case of the prosecution. Further contended that the F.I.R. had been lodged after considerable delay, which raises very authentic suspicion in respect of false involvement of innocent persons, especially as complainant P.W.5 Muhammad Rafique had deposed in his testimony that the police station was just 2/3 acres from Civil Hospital, Khanewal, where the injured was taken in the first instance and medically examined. Finally submitted that the injuries suffered by the accused party stand duly proved as they had been medically examined pursuant to their being produced before the doctor by the police after they had been arrested and that the total injuries suffered by the accused party were eleven in number, one of being grievous that was suffered by Sabir Ali accused, who had expired during the trial.

14. On the other hand, the learned counsel for the State and the petitioner, appearing in the connected criminal revision petition, argued that the accused party had themselves admitted the occurrence in question, which had resulted in the death of Shah Bahrain and injuries to P.W.6 Abdul Sattar, and that as such the instant case was not one of total acquittal. Further submitted that the two eye-witnesses namely, P.W.5 Muhammad Rafique and P.W.6 Abdul Sattar, are natural witnesses of the occurrence in question, and as the accused party has admitted to have caused injuries to P.W.6 Abdul Sattar, therefore, his testimony cannot be ignored and goes a long way to prove the instant case against the accused/appellants. Further argued that the defence version fails to fully explain as to how the deceased had suffered two injuries that had proved fatal and that, therefore, the defence version can only be termed as a belated one to make out a case of mitigating circumstance on behalf of the accused/appellants. Further explained that the delay in lodging the F.I.R. stands explained as the complainant party was pre-occupied with their efforts to save the life of Shah Bahram, who was in injured condition at that time. The learned counsel for the State further argued for sustaining the conviction and sentences awarded to the appellants vide the impugned judgment.

15. The Court has given its anxious consideration to the contentions raised for and against the sustaining of the conviction and sentences awarded to the present appellants. It has been taken notice of that it is in the testimony of injured P.W.6 Abdul Sattar that the Lumberdar of the village was present in the village when they had removed the deceased Shah Bahr4m in an injured condition, and that, therefore, the delay occurred in recording the first information report with the police, and the failure of the said Lumberdar or of a member of the complainant party to report the occurrence promptly to the police, raises serious doubt about the authenticity of the F.I.R. Exh. P.H. as subsequently recorded. Further notice has been taken of the evidence of the complainant P.W.5 Muhammad Rafique, who admitted in his testimony that the police station in question was in the vicinity of Khanewal Hospital, where they had removed the injured, but nevertheless he had made no attempt to straightaway report the matter to the police. It has been further taken notice of that the complainant. P. W.5 Muhammad Rafique was time and again confronted during his cross-examination regarding the improvements that he had made in his testimony with reference to Exh. P.H. i.e. F.I.R. lodged by him. In this respect, the Court is constrained to point out that the said P.W. has been, successfully confronted in respect of each and every assertion made by him in' his testimony before the learned trial Court, and that, therefore, his testimony can neither be relied upon to sustain the conviction of the appellants, nor can it be pressed into service to corroborate the testimony of any, other prosecution witness. Furthermore, the injured P.W.6 Abdul Sattar's testimony also suffers from very material discrepancies that raise serious doubt about the incident in question having taken place in the manner claimed by the prosecution witness. For example, he, for the reasons best known to him, denied in very unequivocal terms ever having been examined by the police; and furthermore when confronted with Exh. D.A., he was materially contradicted, as contrary to what had been recorded therein, he had claimed in his testimony before the learned trial Court that he had neither accompanied the deceased Shah Bahram to the spot to find out the decrease in the flow of irrigation water nor was present at the spot where an altercation, as claimed by the prosecution, had taken place between the said deceased Shah Bahram and Mst. Barkat Bibi. Therefore, it is hereby observed that the testimony of the said injured P.W.6 Abdul Sattar fails to advance the case of the prosecution in any manner or to succeed in corroborating the evidence of any other prosecution witness including the testimony of the complainant P.W.5 Muhammad Rafique, in whose case it has already been observed that his testimony was not worthy of credence and reliance, and it is further observed that in any case one tainted piece of evidence cannot corroborate another tainted piece of evidence. It needs to be observed herein that although some of the accused/appellants had taken up the plea of free fight between the parties pursuant to an attempt by the deceased Shah Bahram to outrage the modesty of the wife of Said appellant, yet there is no direct evidence through any source, except for their bald statements to that effect, which can establish that the occurrence in question had taken place in the manner claimed by the defence. It is further observed, in that respect, that it is a fundamental principle of the safe administration of criminal justice, time and again reiterated by the superior Courts in their various pronouncements that a criminal case has to be proved against the accused beyond reasonable doubt by the prosecution on the basis of the evidence brought on the record and that the burden thereof never shifts to any other person or party, even if the accused take up any plea or pleas, whosoever inconsistent, contradictory or far-fetched; and that in the instant case the prosecution has failed to discharge the said responsibility placed on its shoulders for the reasons discussed above.

16. Pursuant to the above discussion, the present criminal appeal is hereby allowed and the impugned judgment is set aside. Resultantly, the appellants are acquitted of all the offences charged. They are on bail; their bail bonds stand discharged accordingly.

17. Pursuant to what has been stated above, Criminal Revision No. 176 of 1985, directed to be heard alongwith the present criminal appeal, is hereby dismissed. N.H.Q./A-69/L Appeal allowed