Ijaz Ahmad Chaudhry, J.--Vide judgment dated 20.2.2001 passed by the learned Addl. Sessions Judge, D.G. Khan on conclusion of trial in case FIR No, 278/99 registered at Police Station City D.G.
Khan, Tanvir Ahmad appellant-accused was convicted under Section 302(b) 'PPC for committing Qatl-i-amd of Ansar Abbas and sentenced to death with direction to pay Rs, 50,000/- out of which Rs, 40,000/- were to be paid to the legal heirs of the deceased, in default of payment whereof he was to undergo SI for six months whereas Zamir Ahmad appellant-accused alongwith Fayyaz and Humayun co-convicts was convicted under Section 337-A(i) PPC and sentenced to one year R.I. with a direction to pay Rs, 2,000/- as Daman. Benefit of Section 382-B Cr.P.C. was also given.
However, Ata Muhammad co-accused was acquitted of the charges by extending him the benefit of doubt.
2. Tanvir Ahmad and Zamir Ahmad appellants-convicts have preferred Crl. Appeal No, 144/2001 against their above said conviction and sentence while Naveed Siddiqui complainant preferred Crl.
A. No, 218/01 under Section 417(4-A) Cr.P.C. against Ata Muhammad, Zamir Ahmad, Humayun and Fayyaz seeking their conviction in accordance with law whereas M.R. No, 265/01 has been sent by the learned trial Court for confirmation of death sentence awarded to Tanvir Ahmad. As all these three matters arise out of the same judgment we propose to decide the same together through this single judgment.
3. The occurrence in the present case took place on 5.7.1999 at 8.00 p.m. within the area of Block No, 50, City D.G. Khan in front of the house of Naveed Siddiqui complainant, which was reported by the latter vide complaint (Ex. P.B) reduced into writing by Ghulam Abbas S.I. PW12 at Fountain Chowk on the same day at 8.30 p.m. on the basis of which formal FIR No, 278/99 (Ex. PB) was recorded by Muhammad Ismail H.C. (PW.6) at P.S. City D.G. Khan in the morning at 10.10 a.m. on 6.7.1999. The distance between the place of occurrence and the P.S. was about two furlongs.
4. The prosecution story narrated by the complainant in the FIR is that on 5.7.1999 at 8.00 p.m. he was sitting in the street in front of his house, when Fayyaz, Tanvir, Zamir and Humayun alongwith one unknown person while armed with Sotas came there. Fayyaz gave sota blow on the fore-head of the complainant whereas Humayun inflicted sota blow on the little finger of his right hand. In the meanwhile Ansar Abbas deceased stepped forward to rescue the complainant and Tanvir Ahmad appellant gave a sota blow on his head. The unknown person also caused sota blow injury on the head of Ansar Abbas. Zamir Ahmad appellant lastly gave a sota blow on the back side of the complainant. On the hue and cry of the complainant Mohsin Raza (PW.3) and Anees-ul-Hussaini attracted to the spot and also witnessed the occurrence.
The motive behind the occurrence was alleged that at about 6.30 p.m. on the same day Humayun co-convict after taking liquor was found making abusive language in the street, who was restrained by, the complainant and to avenge the same the present occurrence was committed by the accused in the prosecution of their common object.
5. After recording of complaint (Ex. PB) Ghulam Abbas S.I./Investigating Officer PW.12 prepared injuries statement of Naveed Siddiqui complainant and Ansar Abbas (deceased) while in injured condition and sent them to the hospital for medical examination. On 6.7.1999 he' visited the spot, recorded the statements of the witnesses under Section 161 Cr.P.C. and prepared rough site-plan.
On 7.7,1999 Ansar Abbas died in the hospital. Thereafter PW.12 Ghulam Abbas S.I. took into possession bloodstained earth and the last worn clothes of the deceased. Then the investigation was transferred to PW.11 Ghulam Qadir Inspector (now retired), who on 8.7.1999 arrested Tanvir appellant. On 11.7.1999 the latter got recovered sota (P.1) which was taken into possession vide recovery memo (Ex. P.C.). Humayun and Fayyaz Hussain were arrested on 11.7.1999 whereas Ata Muhammad and Zamir Ahmad were arrested on 12.7.1999 and they also led to the recovery of their respective Sotas, which were taken into possession through different recovery memos (Efx. P-C, D, E, F, & G) on 14.7.1999.
6. After completion of investigation report under Section 173 Cr.P.C. was submitted in the Court.
Then charge was framed against the five accused, which was denied by them and they claimed to be tried. The prosecution in order to prove their guilt produced as many as 12 witnesses. The ocular account was furnished by Naveed Siddiqui (PW.2) and Mohsin Raza (PW.3) whereas medical evidence was adduced by Dr. Khalid Naveed (PW.4) who on 5.7.1999 at 9.30 p.m. medically examined Ansar Abbas deceased in injured condition and found two injuries on his head alongwith Naveed Siddiqui on whose person three injuries were found and Dr. Safdar Hashmi PW.7 who conducted post-mortem examination of Ansar Abbas. after his death on 2.7.1999 while on 8.7.1999 he also medically examined Tanvir Ahmad appellant and found three injuries on his person.
However, the investigation was conducted by PWs. 11 and 12. The remaining PWs are more or less of formal nature. After close of the prosecution evidence, the accused were examined under Section 342 Cr.P.C. and all of them denied the allegations levelled against them in the prosecution evidence. However, Tanvir Ahmad appellant to a question that "why this case against you and why the PWs deposed against you" made the following reply:-- On the day of occurrence at the time of occurrence Humayun had gone to house of his friend Fayyaz and I was following him. When Humayun reached in the street of the complainant party in front of their houses the deceased and the complainant abused him and said that why he had come in their street as his family had disgraced the honour of the complainant party. The complainant and the deceased started giving him first kick blows. In the meanwhile I reached near Humayun and wanted to separate him but the complainant party i,e, complainant and the deceased also gave me injuries with the brick bats and I also in self defence of my person and under grave and sudden provocation inflicted injuries with the brick 'bats on the complainant as well as the deceased. We were separated by the nearby shop neighbourer and the Muhalladars. As I was injured I straight away went to the police station city and informed the police about the occurrence where I was made to sit in the police station and complainant party was summoned from their houses by the police. I and the complainant party was confronted with each other by the police in the police station about the occurrence. As the complainant party is the influential one so the complainant party succeeded in getting a case registered against me and my relatives after consultation and deliberation. The complainant party has suppressed the real facts of the case, and procured exaggerated medical certificate from the doctor and also got my injuries declared friendly handed by the. Doctor which I came to know after many days of the occurrence."
Humayun Nazar co-convict supported the above version. However, the other accused denied their participation in the occurrence and professed their false implication.
7. On the close of the trial, the learned trial Court after hearing learned counsel for the parties passed the above said judgment of conviction and sentence. Hence all these three matters.
8. Learned counsel for the appellants contends that in fact the complainant party was the aggressor who caused three incised wounds to Tanvir Ahmad appellant during the incident and under the influence of the complainant party the doctor had dishonestly opined that these injuries were self-suffered as Dr. Farhat Abbas sister's son of the father of the complainant was posted as Director Health Services, D.G. Khan in those days. It is next contended that firstly the injuries on the person of Tanvir appellant were caused with sharp edged weapons and he had acted in self- defence, which defence at the most falls under Section 302(c) PPC. It is further contended that the injuries on the person of Tanvir were concealed by the eye-witnesses and as such they are not worthy of reliance. It is also contended that Naveed Siddiqui PW.2 had made a false statement regarding the third injury on his person while attributing the same to Zamir appellant who is brother of Tanvir appellant as the doctor specifically mentioned it complaint of pain on the back, but subsequently added that there was contusion of 3 c.m. x 1,5 cm on the right chest back in order to falsely involve Zamir Ahmad appellant. It is also contended that as Mst. Saeeda Begum ex-wife of the father of the deceased after being divorced had contracted marriage with Muhammad Azeem uncle of Humayun, which gave annoyance to the complainant party and on finding Humayun in front of their house, they became infuriated and gave him fists and kicks blow. According to the learned counsel Tanvir Ahmad appellant was following Humayun and when he intervened in order to rescue Humayun, he was given brick bats injuries by the complainant as well as the deceased, who both were also given the same treatment by Tanvir appellant in self-defence and in the state of grave and sudden provocation; but the police due to the influence of the complainant party was playing in their hands and did not investigate the case on true perspective. It is further contended that Mohsin Raza (PW.3) was not present at the spot and made false statement being close relative of Naveed Siddiqui (PW.2) as well as the deceased. Lastly it is contended that at the most it is a case of lesser punishment as the occurrence had admittedly taken place at the spur of moment and no evidence has come on record that Humayun was earlier addict of liquor and that motive was falsely set up to make it pre-meditated occurrence which could not be proved.
9. Learned counsel for the complainant, on the other hand, has contended that the prosecution has proved its case beyond any shadow of doubt and the occurrence was promptly reported to the police immediately after commission of the same and there were no chances of fabrication or concoction of false story. According to the learned counsel four accused were residents of about four miles away from the place of occurrence and they had arrived there while armed with Sotas to launch assault upon the complainant party, which is sufficient to prove their common object for the commission of the occurrence and non-conviction of Zamir, Humayun and Fayyaz under Section 302(b)/149 PPC for sharing common object was illegal. It is further contended that name of Ata Muhammad was omitted by the Investigating Officer with mala fide intention and he has wrongly been, acquitted by the learned trial Court in spite of the fact that the second injury on the head of the deceased was specifically attributed to him. It is next contended that Ansar Abbas deceased was a young boy of 22 years who was murdered merely because he had intervened to rescue his brother under the attack of the accused party and death sentence awarded to Tanvir Ahmad appellant is liable to be confirmed. The learned counsel has opposed Crl..A. No. 144/01 filed by the appellants and supported the prayer made in Crl. A. No. 213/01.
10. Learned State counsel also supports the arguments of the learned counsel for the complainant.
11. We have heard the learned counsel for the parties and also gone through the entire record with due care and caution.
12.According to the prosecution version five accused persons namely Fayyaz Ahmad, Humayun, Tanvir Ahmad, Ata Muhammad and Zamir Ahmad caused one injury each on the forehead, little finger of left hand of complainant, two injuries on the head of Ansar Abbas (deceased) and lastly another injury on the back of the complainant with their Sotas respectively. PW. 4 Dr. Khalid Naveed noted down the following injuries on the person of Ansar Abbas while in injured condition:--
(i) An oblique lacerated wound of 5 c.m. x 1 c.m. situated on the top of head. The wound was bone deep and bone was exposed, as the periostium was irregularity tethering, seen through the wound.
There was perfusing bleeding present. The margins were irregular.
(ii) A lacerated wound of 2 x 0.1 c.m. situated on the right side of skull, 3 c.m. above the right ear.
The wound was skin deep, blood was clotted on the wound. The margins were irregularity."
Later on he died in the hospital on 7.7.1999 and PW-7 conducted the post-mortem examination and declared Injury No. 1 sufficient to cause death in the ordinary course of nature. Naveed Siddiqui complainant PW2 sustained the following injuries:-- "(i) A lacerated wound of 3 c.m. x 1.cm. with abrasion surrounding the wound. It was situated on the left side of fore-head. Wound was skin and muscle deep.
(ii) There was swelling of the left little finger of the right hand and feeling pain on movement.
(iii) The patient felt pain on right chest back firing respiration and there was contusion of 3 c.m. x 1.5 c.m. present on the right chest back."
13.Tanvir Ahmad appellant was sentenced to death while Fayyaz Ahmad, Humayun and Zamir Ahmad were sentenced to one year each with direction to pay Rs. 2,000/- as Daman, whereas Ata Muhammad appellant was acquitted of the charges. Only Tanvir Ahmad and Zamir Ahmad appellants have assailed their conviction and sentence through this Crl. Appeal No. 144/01.
14. It is a case of two versions. According to the prosecution version `Humayun co-convict while drunk was restrained by the complainant from making abtisive language in the street the same evening and due to this reason all the five accused in the prosecution of their common object had committed this occurrence. On the other hand, Tanvir Ahmad appellant and Humayun co-convict took the plea that one Muhammad Azeem maternal uncle of Humayun had contrasted marriage with the step-mother of the complainant and the deceased after being divorced by their father, which gave annoyance to them. On the day of occurrence, while finding Humayun co-convict in front of their house, he was given fist and kick blows by the complainant and Ansar Abbas deceased. Tanveer Ahmad appellant, who was following Humayun when stepped forward to rescue him, was also given injuries with brick bats and in self defence he also caused injuries with brick bats. According to the defence version Humayun and other accused did not cause any injury to the complainant or the deceased. Now we will discuss both the versions to unearth the truth.
15.The occurrence in the present case took place on 5.7.1999 at 8.00 p.m. in front of the house of the complainant and according to the prosecution version the same was promptly reported to the police at 8.30 p.m. the same night. Naveed Siddiqui PW.2 admittedly sustained injuries during the occurrence and his presence at the spot is not all doubtful. The other eye-witness Mohsin Raza PW.3 was also resident of the same locality and his presence at the spot cannot be doubted as well. Both of them had no previous enmity or ill-will against the accused. Although PW.2 is real brother of Ansar Abbas deceased and PW.3 is also distinctly related to them but mere relationship between the PWs inter se and with the deceased is not sufficient to discard their evidence. In the facts and circumstances of the case they cannot be declared as interested witnesses.
16.On the other hand according to the defence version brick bats injuries were caused on the person of Tanvir Ahmad appellant. However, Dr. Safdar Hashmi (PW.7) when examined him on the fourth day of occurrence i.e. 8.7.1999 only noticed two Incised wounds plus complaint of pain on the back of neck. Such injuries could only be caused by sharp edged weapon, which belies the defence version. Moreover, Humayun co-convict with whom the complainant party was annoyed did not receive any injury during the occurrence. Even otherwise Tanvir Ahmad appellant did not appear before the police the same day and was only arrested on 8.7.1999, when he was got medically examined and the doctor speeifically stated that there was possibility of causing these injuries with friendly hand. Mere posting of close relative of the complainant party as a Director, Health Services D.G. Khan Division during the days of occurrence is not sufficient to disbelieve the medical evidence. No direct mala fide or ulterior motive has been alleged against PWs. 4 and 7. In this view of the matter, the defence version is not believable and has rightly been discarded by the learned trial Court.
17.The motive part is also not believable. It is admitted by the PWs that Humayun was never earlier seen by them while drunk. According to the prosecution version he was only restrained by the complainant in such a condition about two hours before the occurrence. There was no motive against Ansar Abbas who according to the complainant had come to rescue him only. The prosecution has also failed to give any relationship of the other four accused with Humayun, who belonged to different caste, to join hands with him for the common of the crime. In the facts and circumstances of the case, the occurrence appears to have taken place at the spur of moment and it has not come on record as to what happened immediately before the occurrence resulting into commission of the same when there was no previous enmity or ill-will between the parties.
18. Now we take up the case of Zamir Ahmad appellant. He was attributed one injury on the back of Naveed Siddiqui complainant. The perusal of original MLR shows that Dr. Khalid Naveed PW. 4 firstly noticed only complaint of pain on the back of chest during respiration and the words "there was contusion of 3 c.m. x 1.5 c.m. present on the right chest back." appear to have been written later on. It casts serious doubt about the involvement of Zamir Ahmad appellant in the present case. He was not attributed any injury to the deceased. He is real brother of the main accused Tanvir Ahmad. He had no motive to commit the crime, which took place at the spur of moment. It is settled principle of law that if there is an element of doubt as to the guilt of the accused, the benefit of the same must be extended to him. 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 guilty 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. This rule is antithesis of haphazard approach for reaching a fitful decision in a case. This rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing innocent." The possibility of his false involvement being real brother of Tanvir Ahmad appellant by widening the net to involve maximum family members of the main accused, which is generally noticed in our society now a days, cannot be ruled out. In this view of the matter, we partly accept Crl. A. No. 144/01, set aside the impugned judgment to the extent of Zamir Ahmad appellant and acquit him of the charge by extending him the benefit of doubt.
19.As regards Tanvir Ahmad appellant, he caused one injury with sota on the head of Ansar Abbas deceased. He himself has admitted his presence at the spot and commission of the crime, but in a different manner. The defence version has already been disbelieved by us and by the learned trial Court as well. Both the eye-witnesses (PWs. 2 and 3) remained consistent on the point that Tanvir Ahmad appellant caused sota blow on the head of Ansar Abbas deceased, who later on died in the hospital .on 7.7.1999. We are not in agreement with the learned counsel that it was not a case of Qatl-i-Amad and the deceased died due to negligence of doctor during operation.
PW.4 Dr. ,Safdar Hashmi when medically examined Ansar Abbas in injured condition specifically noted down that he was unconscious having B.P. of 110/70 plus 96 per minute, pupil of right eye was mandatory dilated while pupil of left eye was fully dilated and both were non-reactive to light.
According to the doctor, the patient was immediately referred to Nishtar Hospital, Multan for treatment. PW.7 after post-mortem examination opined that Injury No. 1 was fatal in nature and death was due to extensive extra dural and sub dural haemotomas resulting in severe brain injuries. According to him Injury No. 1 was sufficient to cause death in the ordinary course of nature.
Mere contradictions in the statements of PW.2 and'PW. 3 on the points of involvement of Ata Muhammad in the present occurrence or causing of injury on the little finger of left hand of the complainant are not sufficient to give any benefit of doubt to Tanvir Ahmad appellant, who was attributed fatal injury on the head of the deceased. As such the conviction of Tanvir Ahmad appellant recorded by the learned trial Court under Section 302(b) PPC is maintained.
20. So far as quantum of sentence is concerned, admittedly Tanvir Ahmad appellant was attributed single sota blow on the head of the deceased. The motive set up by the prosecution has been disbelieved. The occurrence appears to have taken place at the spur of moment and what happened immediately before the occurrence resulting into commission of the same has also not come on the record. Even the motive was not directly attributed to Tanvir Ahmad appellant and Ansar Abbas deceased was not the main bone of contention, who had only come for the rescue of the complainant when was given injury by Tanvir Ahmad appellant. In these circumstances, the award of capital sentence of death is not warranted, which is altered with life imprisonment. The direction regarding payment of Rs. 50,000/- is maintained only to the extent that he will pay Rs.
40,000/- as compensation to the slegal heirs of Ansar Abbas deceased under Section 544-A Cr.P.C. as sentence of fine has not been provided by the legislature. He shall also be given the benefit of Section 382-B Cr.P.C. With these modifications in the quantum of sentence the impugned judgment to the extent of Tanvir Ahmad appellant is maintained and Cr1. A. No. 144/01 is partly dismissed.
21. In view of above, Murder Reference No. 265/01 sent by the learned trial Court for confirmation of death sentence of Tanvir Ahmad is replied in negative.
22. So far as Cr1. A. No. 213/01 regarding acquittal of Ata Muhammad respondent is concerned, though at the trial he was attributed second injury on the head of Ansar Abbas deceased yet he was not named in the FIR wherein the complainant (P.W.2) only got recorded that an unknown person while armed with sota had caused injury on the head of Ansar Abbas deceased. As such Ata Muhammad was not named in the FIR. The explanation given by the complainant that due to stress he could not name Ata Muhammad is not believable as perusal of FIR shows that he had given each and every detail of the occurrence and even name of Ata Muhammad was mentioned as father of Tanvir Ahmad and Zamir Ahmad co-accused. The non-mentioning of his name in the FIR as accused casts serious doubt about the involvement of Ata Muhammad in the occurrence.
The possibility of his false implication being father of the main accused, namely, Tanvir Ahmad cannot be ruled out. The learned trial-Court has acquitted Ata Muhammad on valid reasons, which are borne out from the evidence on the record and do not warrant any interference by this Court.
23. As regards Fayyaz, Humayun and Zamir Ahmad, suffice it to say that the latter has been acquitted by this Court and this Court has also come to the conclusion that the occurrence had taken place at the spur of moment. The prosecution failed to prove that it was premeditated occurrence. In such circumstances each and every accused was responsible for his act individually. Both Fayyaz and Humayun were not attributed any injury on the person of Ansar Abbas deceased. They were only attributed simple injuries on the person of Naveed Siddiqui (PW.2) and could not be convicted under Section 302(B) PPC for sharing common intention with Tanvir Ahmad co-convict for committing Qatl-e-Amd of Ansar Abbas. The learned trial Court has rightly did so.
24.For the foregoing reasons, we do not find any merit in Cr1. Appeal No. 213/01, which is dismissed.