Sh. Hakim Ali, J.--Criminal Appeal No, 83-1995/BWP (The State vs. Muhammad Siddique) and Criminal Appeal No, 42-1995/BWP (Raees Ghulam Qadir vs. Muhammad Siddique and others) are directed against judgment dated 8.5.1995, delivered by Syed Kazim Raza Shamshi, learned Additional Sessions Judge, Liaqatpur in Sessions Case No, 39 of 1993 (Sessions Trial No, 20 of 1994).
Cr. Appeal No, 83-1995/BWP has been filed by the State against the acquittal of Muhammad Siddique, whereas Cr. Appeal No, 42-1995/BWP has been filed by the informant, Raees Ghulam Qadir against the acquittal of all the accused, including Muhammad Siddique. In both these appeal; on 25.2.1997, notices were issued to the respondents-accused to appear and defend their acquittal.
2. On 4.1.1993 an FIR No, 4/1993 was got registered by one Raees Ghulam Qadir son of Muhammad Usman, Caste Chachar, resident of Mauza Pacca Laran, Tehsil Liaqatpur, District Rahimyar Khan, with Police of Pacca Laran Police Station under Sections 324, 109 of the PPC (to which Section 302, PPC was added afterward). The facts narrated in the above noted FIR, in brevity, are that on 3.1.1993 there was a quarrel between Abdus Samad son of Raees Ghulam Qadir (the informant) and Muhammad Siddique son of Rasool Bakhsh accused, upon the cutting of tree of date plam. Upon which, both these persons had used abusive language against each other. On the next date, i,e, 4.1.1993, at about 8:00/8:30 a.m. Muhammad Siddique armed with a hatchet, arrived on the lands of the informant, where Abdus Samad was present. Muhammad Siddique accused again started to abuse Abdus Samad, which was echoed from the aforesaid Abdus Samad also. Upon this Muhammad Siddique started inflicting hatchet blows on the head and legs of Abdus Samad. Upon hue and cry, Abdul Karim son of Ashraf Din and Khadim Hussain son of Ali Bakhsh, who were present on their adjacent lands, were attracted to the scene of occurrence, whereas Abdus Samad, after receiving those grievous blows had fallen on the ground. Muhammad Siddique, after hurling threats and firing in the air through his pistol, decamped from the place of occurrence. It was also got entered in that FIR that this occurrence was committed by Muhammad Siddique at the behest of Muhammad Jamil son of Ghulam Rasool, Abdul Aziz son of Muhammad Bakhsh Ghulam Murtaza, brother of the informant, because sister of Muhammad Jamil was divorced by Abdus Samad while with the finance of Khalil Ahmad son of Abdul Aziz, he had contracted marriage. Ghulam Murtaza, a step brother of informant had intended to get his son married with the sister in law of Abdus Samad in which he was a hurdle. So, all these persons Muhammad Jamil, Abdul Aziz, Ghulam Murtza had borne grudge for Abdus Samad.
3. The police commenced its investigation, recorded the statements of the witnesses under Section 161 of the Cr.P.C., took the blood-stained earth from the place of occurrence, for which recovery memo Ex. PD was prepared by SI/SHO. Muhammad Siddique, who was arrested on 8.1.1993, led to the recovery of pistol, which was taken into possession through recovery memo Ex. PE on 8.1.1993.
On 11.1.1993, Muhammad Siddique, accused disclosed about the hatchet, which he had used during the occurrence and got it recovered from a place near Rasool Wah Minor in the cluster of date plam trees, which blood stained hatchet P-2 was taken into possession through recovery memo Ex.
PF. Earth which was taken from the place of occurrence through memo Ex. PD was sent to Chemical Examiner, who found it stained with blood through memo Ex. PO. To determine its origin the Serologist reported that earth to be stained with human blood through memo Ex. PL. The hatchet which was got recovered by Muhammad Siddique was sent to Chemical Examiner for report, who found it stained with blood through his report Ex. PN. As regards the nature of blood, the report of Serologist was brought on record through Ex. PM, by which he had declared it stained with human blood. Abdus Samad, victim was brought to Rural Health Centre, Nawan Kot, where Dr. Sher Muhammad, Incharge Medical Officer prepared injury statement of Abdus Samad, victim through MLC No, 308/93 vide injury statement Ex. PG also. As Abdus Samad succumbed to the injuries, so he was brought to Tehsil Hospital, Liaqatpur. Post mortem of the dead body of Abdus Samad was conducted by PW-1 Dr. Muhammad Iqbal Javed, Medical Officer. His report was brought into evidence as Ex. PA while inquest report is Ex. PD. After the usual completion of investigation by Investigating Officer, Muhammad Siddique son of Rasool Bakhsh, Ghulam Murtza son of Muhammad Usman, Abdul Aziz son of Muhammad Bakhsh and Muhammad Jamil son of Ghulam Rasool were sent up to face sessions trial. The learned Additional Sessions Judge, Liaqatpur (Syed Kazim Raza Shamshi) as noted above, concluded the trial through the impugned judgment dated 8.5.1995.
4. Learned counsel appearing on behalf of the informant has disputed correctness of the impugned judgment delivered by the learned Additional Sessions Judge, Liaqatpur by stating that it is replete with misreading, non-reading and is containing wrong factual as well as legal aspect of the case. Referring to Para No, 26 of the judgment, it has been pointed out by the learned counsel that the learned Additional Sessions Judge has wrongly noted that there was difference between statement of PW-1, namely Dr. Muhammad Iqbal Javed and PW-12 Dr. Sher Muhammad with regard to dimension of injuries. Referring to the statement of PW-1, it has been stated by the learned counsel that Dr. Muhammad Iqbal Javed, PW-1 while giving the details of injury at Serial No, 2, has stated that from the dead body an incised wound 17 x 4 CM x brain matter deep running anterior posteriorly on the right half of the head was found. The same was noted by PW-12, Dr. Sher Muhammad with only difference of 18 cm at Serial No, 2 of the details of injuries. There was no difference between the details given by both the doctors. Both the doctors have stated that this wound was caused by two attempts. He has also stated that it has wrongly been entered by the learned Additional Sessions Judge that with regard to Injury No, 3 noted by PW-12, Dr. Sher Muhammad, nothing was stated by PW-1 Dr. Muhammad Iqbal Javed. Statement of PW-1 in fact was not correctly read. At Serial No, 2 of the details of external appearance, the same wound was entered as that of given by PW-12 Dr. Sher Muhammad at Serial No, 3 of details of injuries given by him, while he had entered into witness-box. He has pointed out another incorrect description entered into the judgment of the learned Additional Sessions Judge while holding that PW12 had stated that Injury No, 5 was caused with sharp edged weapon but PW-1 had contradicted it by stating that it was not caused with any weapon. Quoting the statement of PW-1 at Page No, 3 of the statement of PW-1, he has referred that the aforementioned doctor had stated that Injuries Nos, 1 to 4 and 6 were caused by sharp edged weapon. Learned counsel has also argued that to grant benefit to the accused, time and duration was wrongly noted by the learned Additional Sessions Judge in the above noted para of his judgment. As per learned counsel, learned Additional Sessions Judge has noted that PW-12 had stated in his statement that duration of injuries was 6 to 7 hours while PW-1 had given it 3 to 6 hours. As per learned counsel, this noting by the learned Additional Sessions Judge was against the record. PW12 Dr. Sher Muhammad while appearing as PW-12 at Page No, 2 of his statement in front of column of identification of body, it was given, and stated by him that "duration of injuries was within one to two hours'. Comparing this statement to the deposition of PW-1, Dr. Muhammad Iqbal Javed, he has referred to statement of PW-1 recorded at Page 3 of his statement, wherein the above mentioned witness had stated that "the probable time between injury and death was found within 3 hours and time between death and post mortem was found about 6 hours". As per learned counsel, there was no difference between the statements of these two doctors which could grant benefit to the accused. Summing up the arguments, learned counsel for the appellant/informant has stated with vehemence that, in fact, the learned Additional Sessions Judge has created the reasons to acquit the accused, particularly Muhammad Siddique, who was nominated in the FIR and was ascribed specific role in the occurrence, due to whose causing of infliction of blows, the deceased victim had met with death.
The ocular account of eye witnesses and the injury statement of injuries by PW-12 Dr. Sher Muhammad and the post mortem report of PW-1 Dr. Muhammad Iqbal Javed were not in conflict with each other. The learned Additional Sessions Judge knowingly and wrongly has acquitted Muhammad Siddique accused without any cogent reasons. There was no contradiction in the evidence of both these doctors. As the judgment is the result of wrong reading and misconception of the evidence, so the judgment under challenge is liable to be set aside. And the case may be referred for rewriting of the judgment afresh, after hearing learned counsels for the parties a new.
To support his contention that the judgment if is found the result of improper reading of evidence or is the conclusion of failure to follow the provisions of Section 367 of the Cr.P.C., then the case can be remanded for re-writing of the judgment. He has referred to 2004 YLR 2320 (Jam Sobha vs. The State), 2004 SCM R 1 (Farrukh Sayyar and 2 others vs. Chairman, NAB, Islamabad and others), 1986 P.Cr.L.J. 2344 (Muhammad Ghayyur alias Ghori and others vs. The State), PLJ 1990 Cr.C. (Karachi)
267 (Muhammad Sharif vs. The State), 1997 SCM R 871 (Sahib Khan and 4 others vs. The State and others) and PLJ 1996 Cr.C. (Peshawar) 1189 (Abdul Qayyum vs. State).
5. Defending the judgment and acquittal of the accused, it has been stated by the learned counsel for Muhammad Siddique accused that there was no perversity in the judgment of the learned Addl.
Sessions Judge. In Para No, 26 of the judgment of learned Additional Sessions Judge, the contradictions, which have been enumerated by learned Additional Sessions Judge were not conceived by him but were there in the evidence.
6. At this stage, it is important to point it out that when the statements of both these doctors PW-1 Dr. Muhammad Iqbal Javed and Dr. Sher Muhammad PW-12 were examined by us, in the presence and with the assistance of learned counsel for Muhammad Siddique accused, he could not defend the perversity of the judgment with vehemence. He has half heartedly supported the judgment.
7. Mr. Abdur Rehman Tayyib, learned Advocate, appearing on behalf of other accused namely, Abdul Aziz, Muhammad Jamil and Ghulam Murtaza has stated that their acquittal was not challengeable because they were not present nor had participated in the alleged occurrence. They were roped into the incident due to alleged grudge borne in the mind of informant/complainant.
Otherwise, there was no cogent evidence for their participation, abetment or for their conviction.
8. After arguing the case at some length, learned counsel for the informant as well as the state have conceded that the acquittal of Abdul Aziz, Muhammad Jamil and Ghulam Murtaza was in accordance with judicial norms and principles permissible by law to the accused. So, after this admission, we consider the appeal against Abdul Aziz, Muhammad Jamil and Ghulam Murtaza to be of no consequence and we dismiss the appeal to their extent. Their acquittal shall remain intact.
9. The examine and consider the judgment' under dispute, we are mindful that the accused who is acquitted has got dual benefit of doubt in his favour. One of pre-trial rule of benefit available to an accused and the other of post-trial benefit of doubt extended to him through the judgment of acquittal by the learned trial Court, but when the judgment smacks of perversity, unreasonableness, wrong and preconceived conception of acquittal, not stemming out from the evidence, in such a situation, this Court cannot maintain that judgment in the pretext of extension of benefit of doubt to an accused, who has got such a judgment to his score. The judgment which is the result of incorrect comprehension of facts and the evidence and the conclusions are leading to grave injustice to a party cannot be sustained and maintained by this Court.
10.While taking refuge for acquittal of accused, we have noted that the learned Additional Sessions Judge has created reasons and grounds by stating that there were differences and contradictions in the depositions of two doctors, which were noted by him as follows:--
(i) length of injuries;
(ii) measurement between the injuries;
(iii) attempts for causing injuries; (iv)kind of weapons;
(v) causes of injuries; and
(vi) Duration of injuries.
But all these reasons with the help and assistance of all the learned counsels, we have noted have fallen to the ground, when minutely the evidence was scanned and examined in depth. Dr, Muhammad Iqbal Javed, PW-1 at Serial No, (i) had noted the injury of an incised wound 17 X 4 CM X brain matter deep of the deceased and the same was the evidence of PW-12 Dr. Sher Muhammad, while he had described it at Serial No,
1. He had also noted that injury of incised wound 17 CM long and deep up to brain matter. Same is the case with Injury No,
2. PW-1 Dr. Muhammad Iqbal Javed while describing the injures at Serial No, (ii) has described the injury 8 X 2 CM X brain matter deep incised wound present on the left half of the skull and brain matter was coming out of the wound as the skull bone was cut through and through at the site of the injury, which was also described by PW-12 Dr. Sher Muhammad as 18 CM long incised wound present on the left half of skull. It was deep up to brain matter. He had also described it at Serial No, 2 of the injuries, in his statement and report that brain matter was coming out from the wound. So, there was no material difference between the measurement and description of these two injuries. As regards the attempts for causing the injuries, evidence of both the doctors is unison on this point. At Serial No, 2 of the injuries, it was clearly stated by PW-1 that the wound was caused by two attempts. Brain matter was coming out of the wound as skull bone was cut not pieces at the site of the injury. Same is the case of statement of PW-12 Dr. Sher Muhammad, who has noted with the same tone and tune by stating at Serial No, 2 while describing the injuries with these words "wound was full of debris.
Margins were sharp and cut. Pieces of the bone were present in the wound. This wound was also caused with two attempts". We have found that in fact both the doctors have found that incised wounds were with sharp edged weapon. PW-12, Dr. Sher Muhammad while describing the nature of injuries has clearly stated that "Injuries Nos, 1, 2 3, 4, 5, 6 were caused with sharp edged weapons".
Vide statement of PW-1, wherein under remarks statement, he had given out that "all the injuries were ante mortem and Injuries Nos, 1 to 4 and 6 were caused by sharp weapon while Injuries Nos, 5 and 7 and 8 were caused by blunt weapon". So, the nature of weapon, which was the causative of injuries, was not in conflict between these two doctors except injury No, 3, which was another injury at that serial number, otherwise there was no difference. As regards the duration of injuries, we have found no difference between these two. The evidence of both these doctors as well as the eye witnesses cannot be brushed aside who have not differed on this aspect. We found no material difference between these two doctors' evidence with regard to duration of injuries from the incident, examination of the victim by PW-12 (Dr. Sher Muhammad), and time period provided by PW-1 (Dr. Muhammad Iqbal Javed) for post-mortem examination of the dead body of the deceased victim.
11. Therefore, we are of the considered opinion that the impugned judgment has proceeded on wrong premises of facts, by incorrect and wrong appreciation of evidence and wrong assumption has been made of the evidence. So, we consider it necessary that the case be remanded to the learned Additional Sessions Judge, Liaqatpur for rehearing of the case, by granting opportunity to the learned counsels for the state, informant as, well as to Muhammad Siddique, accused. The learned Addl. Sessions Judge, Liaqatpur, who would be seized of the case, shall decide the case, after the above noted exercise, with care and caution and uninfluenced by the remarks/observations contained in the present judgment of this Court, strictly upon the evidence brought on the record by the parties, upon law and merits of the case.
12.Since, the case relates to an old occurrence of the year of 1993, therefore, the learned Additional Sessions Judge shall try to dispose of the case as expeditiously as possible, preferably within a period of two months from the receipt of the judgment of this Court.
13.Muhammad Siddique, accused is already on bail who shall appear before the learned Additional Sessions Judge (Ist Court), Liaqatpur, who shall be competent to decide the fate of his bail during and for the period, he would face the trial of the case before him. Appeal of the informant for other accused except Muhammad Siddique accused shall be deemed to have been dismissed.