' This judgment will dispose of Criminal Appeal No,234 of 2002 filed by Muhammad Sibtain Shah, Rafi Ullah, Falak Sher and Zulfiqar Ahmad, Criminal Appeal No,293 of 2002 filed by Muhammad Ashraf, appellants. Rafi Ullah and Falak Sher appellants have also filed individual Appeals being Nos.300 and 301 of 2002. Those two appeals alongwith Criminal Revision No,137 of 2002 filed by the complainant for enhancement of sentence shall also be disposed of through this single judgment.
The convict appellants were convicted and sentenced as under:-- ' Imprisonment for life under section 302(b) read with section 149, P.P.C. To all the appellants, 2 years R.I. Plus a fine of Rs,10,000 each in default six months R.I. Under section 344 read with section 149, P.P.C. To all the appellants and 2 years R.I. Under section 147, P.P.C. To Sibtain Shah, Zulfiqar and Ashraf Ali only.
' Benefit of section 382-B, Cr.P.C. Was also granted to the convict appellants. The substantive sentences were ordered to run concurrently.
' The conviction and sentence was recorded by learned Additional Sessions Judge, Faisalabad vide judgment dated 29-1-2002.
2. Briefly stated the facts of the case are that on 17-4-1998 Sibtain Shah, S.-I./ S.H.O. Police Station Gulberg, Faisalabad, Raja Jamshed, A.S.-I., Muhammad Ashraf, A.S.-I., Zulfiqar, Constable and other police officials by scaling over the wall entered into house of the complainant Muhammad Yousaf situate in Chak No,121. At that time, Sher Muhammad and Shuja both brother and son of the complainant were present in the house. On the asking of the complainant and other present in house, Sibtain Shah told that he had to arrest Arbab Yousaf, son of the complainant and if he is produced, the complainant shall be let off. The complainant was locked in police lock-up of Police Station Gulberg. At evening on 24-4-1998 Sher Muhammad, Muhammad Shuja and Muhammad Idrees, Lambardar produced Arbab Yousaf before Sibtain Shah who sent for the complainant from lock-up, stated that accused has been arrested, he will not be challaned and let off if two lacs of rupees was handed over to him and if amount was not paid, Arbab would be taught a lesson. Since son of the complainant was not accused, so he did not agree to pay any amount to S.H.O. In the presence of the complainant, Arbab was confined in the police lock-up. On the next day, the complainant alongwith Shuja took breakfast for Arbab and witnesses that eyes of Arbab were swollen, The complainant talked to the S.H.O. Who in turn replied that the complainant had more love for wealth than the son and if Rs, two lacs are not given, Arbab would be done to death in a police encounter. The complainant approached the high-ups but they stated that let the S.H.O.
Satisfy himself and then they will get Arbab released. The complainant alongwith Shuja and Muhammad Idrees had been going to police station for 4/5 days at different hours. During this period, Sibtain Shah, Raja Jamshed, A.S.-I., Muhammad Ashraf, A.S.-I., Rafi Ullah and Falak Sher alongwith Zulfiqar had been giving torture to son of the complainant. Arbab son of the complainant had been asking his father to pay the amount to Sibtain Shah otherwise he would be killed. On 10-5-1998, the complainant, Shuja and Muhammad Idrees went to police station to deliver meal to Arbab and they were still in Duhri they heard the cries of Arbab. The complainant alongwith his companions rushed towards the barrack and witnessed that Arbab Yousaf was hanged with his head downward with a rope and iron rod in the ceiling. At that time, Sibtain Shah etc. Were torturing the Arbab Yousaf. The complainant and his companions requested the police to bring !Down Arbab which request was acceded to. When Arbab Yousaf was lying on the floor, he was vomiting blood. The complainant went back to inform the relatives. At night, the complainant again went to police station and noticed that Arbab Yousaf was not available there and had been removed by the police officials to Civil Hospital. The complainant alongwith companions went to hospital where he came to know that his brother had died due to injuries. All the accused were alleged to have kept Arbab in illegal confinement from 24-4-1998 to 10-5-1998 with a view to extract money. The accused were also held to be responsible for the murder of Arbab Yousaf.
3. Mukhtar Ali, Inspector (P.W.8) during investigation found that Arbab Yousaf died while he was in police custody. He also found that deceased was required in a car snatching case. He further opined that it was not a murder but a case covered under section 316, P.P.C. All the accused were found to be responsible for murder of Arbab Yousaf.
4. At the trial, prosecution in order to prove its case produced 9 witnesses in all.
' Evidence of the prosecution was closed and then statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence. After conclusion of the trial, the accused were convicted and sentenced as stated above.
5. Mr. S.M. Nazim, learned counsel for Rafi Ullah, appellant submits that the convict appellant was not present and was on leave; there is no injury on the body of the deceased with regard to hanging him with the roof; ocular account is in conflict with medical evidence because according to Medical Jurisprudence by Modi, the bruises become bluish after three days; the conduct of the two eye-witnesses who are father and real brothers of the deceased was unnatural because when they saw that Arbab was being tortured by the police, they instead of approaching some higher police officer, went to their village; there is documentary evidence to prove innocence of the appellant while the evidence led by the prosecution is not confidence inspiring and that the prosecution has failed to prove its case against the appellant and he is entitled to acquittal.
6. Mr. Ijaz Hussain Batalvi, Senior Advocate, submits that the judgment of the trial Court shows that it is a judgment based on prejudice and not the evidence; no specific role was attributed to the convicts; no details of the weapons used by the appellants were given by the alleged eyewitnesses; there is no description given by the eye-witnesses as to violence on the body of the deceased; there is no mention as to under whose order and who brought down the deceased from the roof when he was tied with a rope and hook on the roof; neither any hook nor any rope was taken into possession; the evidence is omnibus and so the conviction; Roznamcha Waqiati being an official document, presumption of truth is attached to it unless presumption of truth is rebutted; he has referred to Report No,11, dated 10-5-1998 written by Sibtain Shah, appellant which shows that Arbab was produced alongwith a Pajero by one Mujahid Hussain Qureshi; learned counsel has drawn my attention to the statement of Dr. Ahmad Saeed P.W.4 to submit that according to this witness the doctor who examined the injured (deceased) for the first time when he was brought in the hospital, opined that the possibility of pulmonary edema, broncho pneumonia and acute renal failure may exist; the injuries on; the doctor who firstly medically examined the deceased was not produced by the prosecution; his evidence has been withheld; the doctor who has conducted post-mortem examination on the dead body of the deceased has not given the age of bruises; the marks of injunction on the person of the deceased remained unexplained; the injuries on the person of the deceased were old, there was no fracture, the first version which he took before the Investigating Officer and the last version before the trial Court in his statement under section 342, Cr.P.C. Of Sibtain Shah remained one and the same; many witnesses to support the plea of alibi were produced before the Investigating Officer but their statements were not recorded; even the board of doctors which conducted the post-mortem examination on the dead body of the deceased was not sure that death of deceased occurred due to injuries on the person of the deceased; the judgment of learned trial Court is based on false presumption of evidence; it is a case. Of no evidence and the convict appellants are entitled to acquittal. Learned counsel has relied upon PLD 1956 Lahore 300, PLD 1970 SC 10, PLD 1972 Lahore 661, 1989 PCr.LJ 1344, PLD 1996 SC 274, 2003 MLD 463 and 2002 SCMR 647.
7. Hafiz Khalil Ahmad, Advocate representing Falak Sher appellant submits that the convict at the relevant time was working as Naib Moharrar, he had nothing to do with arrest or investigation of any case and that the only evidence according to P.W.6 against him is that he maltreated; while P.W.7 did not take the name of Falak Sher and deposed before the trial Court that all the accused named in the F.I.R. Tortured the deceased.
8. Mr. Shaukat Javed, Advocate representing Muhammad Ashraf appellant submits that he has been falsely involved for the reason that case F.I.R. No, 183 was registered by him; he took the plea of alibi but the learned trial Court without taking into consideration the role of the appellant, convicted him, so he is entitled to acquittal.
9. On the other hand Mr. Ghulam Farid Sanotra, Advocate representing the complainant who has also filed Criminal Revision No,137 of 2002 submits that ocular account is fully corroborated by medical evidence specially the report of the Chemical Examiner and that of the Bacteriologist; no presumption of truth can be attached to daily diaries as in the instant case, those were prepared in the police station where the accused were posted; the statements of P.Ws.6 and 7 are consistent and confidence inspiring; both the P.Ws. Have deposed against the appellants; due to injuries caused by the appellants complications were created in vital system of the body of the deceased and that the deceased remained in custody of the police and in police custody he was maltreated which resulted into his death. He has also read before me Article 2 of Qanune-Shahadat Order, 1984. Learned counsel has relied upon 1977 SCMR 309 and PLD 1983 SC 216.
10. Mr. Muhammad Jehangir Wahla, Advocate for the complainant submits that deceased Arbab Yousaf was admittedly killed when he was in police custody. Further submits that it has come on record that there were marks of injections on the person of the deceased when he was taken to hospital on 10-4-1998. These marks of injections are suggestive of the fact that the appellants tried to save the life of the deceased so their case would fall under section 316, P.P.C. And not under section 302(b), P.P.C.
11. Learned counsel for the State adopts the arguments advanced by Mr. Muhammad Jehangir Wahla, Advocate for the complainant.
12. I have heard learned counsel for the parties at length and have gone through the evidence recorded by the trial Court. Raja Jamshed, A.S.-I. Accused is still at large. There is no denying the fact rather it is proved on record that deceased Arbab Yousaf was taken in police custody when he was killed. Both the eye-witnesses namely Muhammad Yousaf and Shuja Yousaf (P.Ws.6 and 7) are father and brother of the deceased but they had no enmity against the appellants to falsely depose against them. It was in the F.I.R. And also in evidence that firstly on 17-4-1998 Muhammad Yousaf, the complainant was taken into custody by Sibtain Shah, Raja Jamshed (PO) Muhammad Ashraf, A.S.-I., Zulfiqar, Constable and other police officials and locked in police lock-up, he was kept in illegal confinement and was released on 24-4-1998 when Arbab Yousaf (deceased) was produced. Both the eyewitnesses are consistent in their evidence that the deceased remained in custody of the appellants from 24-4-1998 till 10-5-1998 when he was taken to hospital in an injured condition and expired in between the night of 10th and 11th April, 1998. It is a case of custodial killing.
The minor discrepancies in the statements of the P.Ws. Are natural because their statements were recorded 3 years after the occurrence.
' Mr. S.M. Nazim, as also Mr. Ijaz Hussain Batalvi, Advocates have submitted in their arguments that bruises become bluish after three days. This corroborates the evidence of eye-witnesses that the deceased was in custody of the appellants if not earlier but at least three days prior to his death.
The place of injuries on the person of the deceased is suggestive of the fact that he was tortured by the appellants and it is a case of typical physical torture. When the appellants saw that as a result of beating, the condition of the deceased has become precarious, they took him to hospital in order to save life of Arbab and also to save themselves from the clutches of law. The signs of injections on the body of deceased also prove that he was given medical treatment in the hospital.
' As far as plea of alibi of Sibtain Shah and Falak Sher is concerned, no evidence whatsoever was produced by them before the trial Court though at the time of trial, it was brought on record by the defence counsel that many persons appeared before the Investigating Officer (P.W.8). There was nothing in their way to stop the appellants from producing' those witnesses of alibi before the trial Court. As far as ' Zulfiqar appellant is concerned, by merely saying that he was not, posted at Police Station Gulberg where the occurrence had taken place is no ground to accept his plea of alibi and Ghulam Muhammad, Inspector examined as D.W.1 was also a police official. At this stage, I 'may state that everybody in our country is aware about the conduct of the police. Normally, officials from various police stations are called to apprehend accused and to maltreat or adopt third degree method just for extraneous consideration.
' As to reliance of defence on the daily diaries is concerned, unfortunately, no reliance can be placed on such diaries because those are held in abeyance for 24 hours and moreover those were filled by the police officials and the accused in this case are also the police officials. Further these are the daily diaries of the police station where the occurrence had taken place.
' Here I would like to refer sub-clauses (1), (2) and (4) of Article 2 of the Qanun-e-Shahadat Order, 1984:--
2. Interpretation (1) ....................
(a) ............
(b) ............
(c) ............
(d) "fact includes"
(i) anything, state of things, or relations of things capable of being perceived by the senses; and
(ii) any mental condition of which any person is conscious.
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a main said certain word, is a fact.
(d) That a man holds, a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is, or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
(2) One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Order relating to the relevancy of facts.
(3)
(4) A fact is said to be proved, when after considering the matters before it, the Court either believes it to exist or considers its non-existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition, that it does not exist."
' The above-said Article has been referred for the reason to show that facts in this case are so connected with each other that it has been proved that the deceased was first produced by his relations and then he was tortured physically which led to his death. Reliance in this regard can safely be plated on the case of Habib ur Rehman v. The State PLD 1983 SC 286.
' Mr. Muhammad Jehangir Wahla, Advocate for the complainant and learned counsel for the State were fair enough to submit that it is not a case covered under section 302(b), P.P.C. But one under section 316, P.P.C. For the reason that the appellants seeing the deceased in a precarious condition took him to hospital and provided medical treatment to save his life as is evident from the marks of injections on the body of the deceased. Moreover the injuries on the person of the deceased were on non-vital parts bf body. The board consisting of four doctors who had conducted post-mortem examination on the body of the deceased was not sure about the cause of death of the deceased and it deferred the matter till the reports of the Chemical Examiner and that of the Bacteriologist are received and for that reason different viscera of the deadbody of the deceased were sent to the experts. For this reason also, the case of appellant is not covered under section 302(b), P. P. C .
' Here I may with advantage reproduce section 315, P. P .0 . : -- ' Qatl- Shibh-i- Amd.--- Whoever, with intent to cause harm to body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit Qatl-Shibh-iAmd.
Illustration "A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of Qatl-Shibh-i-Amd."
' It is also note worthy that the case was registered on 40-5-1998; pre-arrest bail applications of the accused were cancelled on 8-2-2000 but they were arrested on 28-3-2001. This fact alone shows that what state of affair is going on in the country and\ how the appellants were influential. The judiciary being an important limb of the State cannot close its eyes to the realities and the atmosphere and circumstances prevailing. Moreover Mukhtar Ali, Inspector (P.W.8) found all the appellants to be guilty and his finding was verified by the D.I.G.
' Having attended to the submissions made by learned counsel for the parties and going through the evidence on record, I am of the considered opinion that the prosecution has proved its case against the appellants to its hilt but their case would not fall under the provisions of section 302(b), P.P.C. But would fall under section 316, P.P.C., the definition of which has been given in section 315, P.P.C., reproduced above. Resultantly, conviction of the appellants is altered from section 302(b), P.P.C. And they are convicted under section 316 read with section 149, P.P.C. And sentenced to undergo R.I. For fourteen (14) years with the benefit of section 382-B, Cr.P.C. All the appellants are also directed to pay Diyat amount. However, conviction under section 344 read with section 149, P.P.C. And to pay the amount of compensation and in default thereof is maintained. Both the substantive sentences would run concurrently.