2007 PLP 1543 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment shall dispose of Criminal Appeal No. 1034 of 2005 (Muhammad Hayat v. State), Criminal Appeal No. 1270 of 2005 (Khizar Hayat v. State) and Criminal Revision No. 639 of 2005 (Akhtar Abbas v. Muhammad Hayat etc.) as they arise out of the same judgment, dated 30-5-2005 passed by the learned Additional Sessions Judge, Sargodha whereby, after having tried the appellants they were convicted and sentenced as under:-- (i) Appellant Muhammad Hayat was convicted under section 324, P.P.C. and sentenced to ten years' R.I. And fine of Rs.10,000 in default whereof to further undergo S.I. for six months; (ii) Under section 337-A(ii), P.P.C. to five years R.I. and fine of Rs.20,000 as Arsh; (iii) Appellant Khizar Hayat was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a further direction to pay a compensation of Rs. 1,00,000 as provided under section 544-A, Cr.P.C. in default whereof to further undergo six mouths' S.I.; (iv) He was further convicted under section 337-L(ii), P.P.C. and sentenced to two years' R.I. with a payment of Rs.5,000 as Daman to be paid to injured Akhtar Abbas; (v) Benefit of section 382-B, Cr.P.C. was extended to the appellants. However, benefit of doubt was extended to six co-accused, namely, Ahmad Sher Khan, Fateh Sher, Muhammad Mumtaz, Muhammad Shahbaz, Zafar Iqbal, Abdul Khaliq and they were acquitted from the case. Criminal Appeal No. 1133 of 2005 (Akhtar Abbas v. Ahmad Sher Khan etc.) was tiled against the acquittal of the above mentioned six acquitted accused persons which was dismissed by a learned Division Bench of this Court vide order, dated 14-11-2005 (headed by me).

2. Brief facts of the case, as explained by Akhtar Abbas (P.W.4) complainant in the F.I.R. are that on 5-11-2004 at about 6-00 p.m., he along with his deceased father Ghaus Muhammad, Zulfiqar and Muhammad Aslam were going from village to their dera and when they reached near the dera of Mumtaz accused, appellant Muhammad Hayat armed with a rota, Ahmad Khan armed with a sots, Khyzar Hayat appellant armed with a sota, Fateh Sher armed with a rota, Mumtaz and Shahbaz armed with guns along with two unknown persons, came there, appellant Hayat raised a Lalkara to teach them a lesson for quarrelling with the children and he gave a sots blow on complainant's back side of head followed by a sots blow by appellant Khyzar which landed on his right arm, his father Ghuas Muhammad stepped forward. to rescue him but appellant Khyzar Hayat gave a sots blow on the head of his father Ghaus Muhammad, then a kick blow was given by Muhammad Hayat appellant on his testicles who fell down and became unconscious, Zulfiqar and Muhammad Aslam tried to rescue him and his father but Mumtaz and Shahbaz fired two shots each at them with their respective guns which fires went amiss, Ahmad Khan and Fateh Sher gave fists and kicks blows on his head and arm, later on through a supplementary statement Zafar Hayat was also shown to be present at the spot who was not identified, Ghaus Muhammad was taken to Civil Hospital Shahpur but he died on having reached the hospital, Abdul Khaliq was made accused of abetment, according to the complainant he left Zulfiqar and Aslam P.W. with the dead-body of his father in the hospital and proceeded to the Police Station to lodge the F.I.R. (Exh.PH), he was also" medically examined for his injuries in THQ Hospital Shahpur Saddar and motive behind the occurrence was stated to be an altercation between the brother Safdar Abbas with Ahmad Sher and Muhammad Hayat accused persons on the date of occurrence at about 4-00 p.m. whom his said brother insulted due to which the accused persons took revenge of the said insult.

3. After having completed legal formalities, challanwas submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced seven prosecution witnesses during the trial.

4. Ch. Anwarul Haq Pannu, Advocate/learned counsel for the appellant in Criminal A. No. 1270/2005 (Khizar Hayat v. State) in support of this appeal submits that on the same set of evidence six accused were acquitted by the learned trial Court; that this appellant and the acquitted accused persons are related inter se; that it was not a case of common object; that motive was not proved because Safdar Abbas, brother of the complainant, with whom there was an altercation of the accused Ahmad Sher and Muhammad Hayat was not produced; that the occurrence had taken. place in the dark hours of the night and there was no mention of any source of light in the F.I.R.; that the first version of the .appellants was of innocence, were found innocent by the police throughout, were never arrested and even were not challaned by the police but. the learned trial Court had summoned them; that the evidence of Akhtar Abbas (P.W.4) and Zulfiqar (P.W.5) is very doubtful in nature and they are related inter se as well; that no independent witness has been produced during trial; that the complainant had stated that after being medically examined had visited the police station and then lodged the F.I.R. although he was got medically examined by the police; that the innocence of the appellants was not raised before any forum; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.

5. Dr. Muhammad Akmal Saleemi, Advocate/learned counsel for the appellant in Criminal Appeal No. 1034 of 2005 (Muhammad Hayat v. State) in support of this appeal submits that the injuries attributed to appellant Muhammad Hayat were also attributed to the acquitted accused, namely, Fateh Sher and. Ahmad Sher Khan by P.W.4 and P.W.5; that the prosecution did not lodge any complaint against the opinion of innocence by the police qua the present appellant; that P.W.7 Muhammad Afzal, who was Investigating Officer of the case, had stated so during the trial but was not cross-examined on this point and that this appellant is also entitled to acquittal as the prosecution has failed to prove its case against him beyond any shadow of doubt.

6. Mian Muhammad Sikandar Hayat, learned counsel for the complainant submits that it is a case of promptly lodged F.I.R.; that the ocular account in this case is corroborated by the medical evidence; that P.W.4, who is complainant of the case, is an injured eye-witness having serious injury on his head which is not self-suffered, so, being a star witness of the case,. his testimony is worthy of credence; that the P. Ws. had no malice or reason to falsely implicate the appellants; that substitution in such like cases is a rare phenomenon; that appellant Hayat is connected with the motive; that P.W.6 Nawaz is a witness of abetment who is also a real brother of father of appellant Khyzar Hayat and he had no reason to falsely depose against the appellants; that so far as innocence of the appellants is concerned, P.W.7 Muhammad Afzal was still investigating the case when it was transferred to C.W.1 Abdur Rauf, it was challenged before his Court and since the trial had started, therefore, it was observed by this Court in the ICA that the learned trial Court should decide the case in accordance with the evidence to be produced by both the parties; that no evidence was .produced by the appellants in proof of their plea of alibi; that the prosecution has proved its case against the appellants beyond any shadow of doubt to sustain conviction and that so far as acquittal of the. six accused persons is concerned, there was no supporting evidence against them while there is overwhelming evidence against the appellants available on the record to connect them with the commission of the offence and their appeals are liable to be dismissed.

7. Mr. Naseeruddin Khan Nayyar, the learned .Additional .Prosecutor General, while appearing on behalf of the State, submits that he would support the judgment of conviction.

8. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.

9. The occurrence in this case had taken place on 5-11-2004, the matter was reported to the police at 7-00 p.m. by complainant Akhtar Abba's (P.W.4).

10. In all there were seven accused persons who were named in the F.I.R. while one was shown as an unknown person who was, later on, named as Zafar Iqbal.

11. However; benefit of doubt was "extended to six co-accused, namely, Ahmad Sher Khan, Fateh Sher, Muhammad Mumtaz, Muhammad Shahbaz, Zafar Iqbal Abdul Khaliq and they were acquitted from the case. Criminal Appeal No. 1133 of 2005 (Akhtar Abbas v. Ahmad Sher Khan etc.) was filed against the acquittal of the above mentioned six acquitted accused persons which was dismissed by a learned Division Bench of .this Court vide order, dated 14-11-2005 (headed by me).

12. Prosecution in order to prove its case produced two eye-witnesses, namely, Akhtar Abbas (P.W.4), who is son of the deceased Ghaus Muhammad while Zulifqar (P.W.5) is material uncle of complainant Akhtar Abbas (P.W.4). Muhammad Aslam was however given up.

13. Allegation against the present appellants, as explained by Akhtar Abbas (P.W.4) complainant in the F.I.R. are that on 5-11-2004 at about 6-00 p.m. he along with his deceased father Ghaus Muhammad, Zulfiqar and Muhammad Aslam were going from village to their dera and when they reached near the dera of Mumtaz accused, appellant Muhammad Hayat armed with a sofa, Ahmad Khan armed with a sofa, Khyzar Hayat appellant armed with a sofa, Fateh Sher armed with a sofa, Mumtaz and Shahbaz armed with guns along with two unknown persons, came there, appellant Hayat raised a Lalkara to teach them a lesson for quarrelling with the children and he gave a sots blow on complainant's back side of head followed by a sots blow by appellant Khyzar which landed on his right arm, his father Ghuas Muhammad stepped forward to rescue him but appellant Khyzar Hayat gave a sots blow on the head of his father Ghaus Muhammad, then a kick blow was given by Muhammad Hayat appellant on his father's testicles who fell down and became unconscious, Zulfiqar and Muhammad Aslam tried to rescue him and his father but Mumtaz and Shahbaz tired two shots each at them with their respective guns which fires went amiss, Ahmad Khan and Fateh Sher gave fists and kicks blows on his head and arm, later on through a supplementary statement Zafar Hayat was also shown to be present at the "spot who was not identified, Ghaus Muhammad was taken to Civil Hospital Shahpur but he died on having reached the hospital, Abdul Khaliq was made accused of abetment according to the complainant he left Zulfiqar and Aslam P.W. with the dead-body of his father in the hospital and proceeded to the Police Station to lodge the F.I.R. (Exh.PH) and he was also medically examined for his injuries in THQ Hospital Shahpur Saddar.

14. The motive behind the occurrence, as given in the F.I.R. by the complainant Akhtar Abbas P.W.4, was that there was an altercation between his brother Safdar Abbas and Ahmad Sher and Muhammad Hayat accused persons on the day of occurrence at about 4-00 p.m. whom his said brother insulted due to which the accused persons took revenge of the said insult but, surprisingly, the said Safdar Abbas, who was real son of the deceased and real brother of the complainant, was never produced by the prosecution during the trial to prove the motive. Appellant Khyzar Hayat was not party to that quarrel which took place between the said Safdar Abbas on the one hand and Muhammad Hayat and Ahmad Sher on the other hand, so, the prosecution tailed to prove the motive against the present appellants.

15. Dr. Naseerul Hassan (P.W.3) examined Akhtar Abbas at 7 p.m. and the injury was found to be fresh. The said doctor conducted postmortem examination on the dead-body of Ghaus Muhammad deceased at 9-30 p.m. and found two blunt weapon injuries on his person. According to the F.I.R. the complainant after the occurrence along with the P.Ws. took his father Ghaus Muhammad in an unconscious condition to the hospital where he died. He did not get him medically examined at the hospital but after leaving the dead-body of his father at the hospital he went to the police station, lodged the F.I.R. and it was the police who prepared his injury statement and got him medically examined. It is interesting to note that the F.I.R. was recorded at 7-00 p.m. while his medical examination also took place at 7-00 p.m. and the question arises how a person can be present at two places at one point of time i.e. at 7-00 p.m. i.e. in the police station and also in the hospital. Throughout the investigation, police never arrested the appellants, no recovery was effected from them, they were found innocent, police did not challan them but no complaint was filed by the complainant against the appellants and it was the learned trial Court who had summoned them to face the trial. The first version of the appellants before the police was that they were innocent. P.W.7 Muhammad Afzal, investigated the case and admitted in cross-examination that a large number of persons appeared before him qua innocence of-the appellants. Even the investigation was conducted by C.W.1 Abdur Rauf who too concurred with the opinion of innocence of the appellants. The occurrence in the case had taken place at about 6-00 p.m., it was the month of November when the sun sets at about 5-10 p.m. meaning thereby that it took place after about 50 minutes of Maghrab time and darkness must have prevailed at the said point of time. Since no source of light was mentioned in the F.I.R. nor anything in this regard was produced during the trial, so, there was not possible for the P.Ws. to have identified the accused persons at that juncture. These circumstances 'are indicative of fact that the statement of P.W.4 Akhtar is not worthy of credence. Apart from above, on the same set of evidence six accused persons were acquitted from the case, so, it is my considered opinion that if a person can tell a lie qua the said acquitted accused then his statement cannot be believed qua the remaining accused persons i.e. the appellants although he claims himself to be the injured-P.W. because there is no independent corroboration to his statement. The questions of identifying the accused persons in the dark hours and evidentiary value of the statement of injured witness came up for consideration before the august Supreme Court of Pakistan in the case of Muhammad Pervez and. others v. The State and others (2007 SCMR 670), wherein, at page 681, the apex Court of Pakistan observed as under:-- " .It is also a settled law that injuries on a P.W. only indication of his presence at the spot but is not informative proof of his credibility and truth. See Said Ahmad's case (1981 SCMR 795) " In the same judgment (supra) at page 6'82, it was held as under:-- " The occurrence took place at 8-45 p.m. on the dark hours, therefore, statement of eye-witnesses that they had seen .the convicts/appellants do not appeal to the reason ." The question of grant of benefit of doubt to an accused came up for consideration before the august Supreme Court of Pakistan in the case of Ayub Masih v. The State (PLD 2002 Supreme Court 1048) wherein while acquitting accused from a case registered under section 295-C, P.P.C., at page 1056, the apex Court held as under:-- " ..It is hardly necessary to reiterate that the prosecution is .obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not the imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim. It is better that ten Quilts persons be acquitted rather than one innocent person be convicted. In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this .rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". (Emphasis supplied) So far as testimony of P.W.5 Zulfiqar is concerned, he is the maternal uncle of the complainant having a bad character. As per record he was involved in many criminal cases and was a previous convict. So the evidence furnished by a person of such like character, in my considered opinion, cannot be accepted in a case of capital punishment.

16. After having sifted grain from the chaff and after having applied independent judicial mind this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt to sustain conviction. The prosecution case is full of doubts and doubts and on the basis of such a shaky evidence, the conviction and sentence awarded to the appellants cannot be maintained because the same has not come through an unimpeachable source, is untrustworthy; unreliable and cannot stand the test of judicial scrutiny. Resultantly,' both the appeals i.e. Criminal Appeal No. 1034 of 2005 (Muhammad Hayat v. State) and Criminal A. No. 1270 of 2005 (Khizar Hayat v. State) are allowed, the impugned judgment is set aside; the appellants are acquitted from the case and shall be released forthwith if not required to be detained in any other case. For afore-referred reasons, I find no merit in Criminal Revision No.639 of 2005 (Akhtar Abbas v. Muhammad Hayat etc.) which is hereby dismissed. N.H.Q./M-282/L Appeals accepted.