This single judgment will dispose of Criminal Appeal No, 1230 of 2004 filed by Muhammad Arif son of Khadim Hussain and Criminal Appeal No, 1239 of 2004 filed by Ghulam Rasool alias Rana son of Khadim Hussain, appellants against their conviction and sentence, who, alongwith Khadiin Hussain son of Muhammad, Nasar son of Khadim Hussain, Zafar son of Khadim Hussain, Munawar Hussain son of Umar Hayat, Muhammad Sarwar son of Umar Hayat, Razzaq son of Umar Hayat, Mazhar Hussain son of Khadim Hussain, Shahid son of Muhammad Younas and Tahir Mehmood son of Muhammad Younas, (acquitted accused) were sent up to face trial in case F.I.R. No, 179 dated 20.4.2001, registered under Sections 302/452/354/148/149 PPC at Police Station Bkikhi, and vide judgment dated 18.6.2004 handed down by Rana Abdul Hafeez, the then learned Additional Sessions Judge, Sheikhupura, both the appellants were convicted and sentenced as under:-- Muhammad Arif Appellant Under Section 324/34 PPC3 years imprisonment alongwith fine of Rs, 3,000/-In default of payment of fine to further undergo 3 months R.I.
U/S 354 PPC One year imprisonment alongwith fine of Rs, 1,000/-In default of payment of fine to further undergo one months R.I.
Ghulam Rasool Appellant Under Section 324/34 PPCThree years imprisonment alongwith fine of Rs, 3,000/-In default of payment of fine to further undergo 3 months R.I.
U/S 302(b) PPCImprisonment for life asIn default of payment of `ta'zir with direction forcompensation to further payment ofundergo six months R.I. compensation of Rs, . 50,000/- under Section 544-A Cr.P.C. to the legal heirs of the deceased.
Benefit of Section 382-B Cr.P.C. was also extended in favour of both the appellants. However, through the same judgment Khadim Hussain son of Muhammad, Nasar son of Khadim Hussain, Zafar son of Khadim Hussain, Munawar Hussain son of Umar Hayat, Muhammad Sarwar son of Umar Hayat, Razzaq son of Umar Hayat, Mazhar Hussain son of Khadim Hussain, Shahid son of Muhammad Younas and Tahir Mehmood son of Muhammad Younas, were acquitted of the charge by extending them the benefit of doubt.
2. The occurrence in the present case had taken place on 15.4.2001 at about 12.00 noon near the Darbar situated at Chak Chah Sarkari Bashmula Manj Class within the jurisdiction of Police Station Bhikhi, 14 k.m. towards North while the matter was reported by Inayat Ali (PW-10) by moving an application (Ex.PK/1) to Ghulam Rasool, S.I. (PW-7) on the basis of which F.I.R. (Ex. PK) was chalked out, under the above-said Sections on 20.4.2004 at 5.45 p.m.
3. Concisely the facts of the prosecution case set up in the (Ex.PK) are that the complainant was resident of Chak Sarkari and an Agriculturist by profession. The boys of the village were playing cricket outside the village. Complainant's son Muhammad Aslam went there. Ghulam Rasool son of Khadim Hussain was already present there, who said that he was looking like "Eunuch". At this they grappled with each other, but the matter was patched up. On 15.4.2001 at 12.00 noon, Arif, Ghulam Rasool, Nasar, Mazhar sons of Khadim Hussain and Khadim Hussain son of Muhammad, caste Virk, residents of the village were sitting near the Darbar. When complainant's brother Muhammad Anwar alongwith his sons Aslam, Ashiq and his daughters Mst. Samina and Mst. Najma passed through the passage leading towards their house, Khadim Hussain raised lalkara that Aslam etc. be taught a lesson for abusing them. On this Ghulam Rasool and Arif gave sota blows on Aslam.
Aslam became injured. They too injured Muhammad Anwar. When Mst. Samina Bibi stepped forward for escaping the complainant and Anwar, Arif appellant caught hold of her hair and interfered in her modesty. The complainant party in order to save their lives entered into the house of Akbar Ali son of Nishan Ali, but Nasar, Mazhar, Ghulam Rasool, Arif, Zafar sons of Khadim Hussain, Khadim son of Muhammad, Munawar Hussain, Sarwar Hussain, Mothi sons of Umar Hayat, Tahir Mehmood Shahid, Abdal and Amanat sons of Younas, caste Virk, residents of village armed with dandas and sotas entered into the house of Akbar Ali and caused injuries to them. They also threw bricks. Beside him the occurrence was witnessed by Zafar son of Sharif Virk, Riasat son of Nishan, Riaz son of Sharif, Zafar Iqbal son of Muhammad Shafi, Caste Virk, resident of village and they escaped them. He took Anwar and Aslam to hospital and obtained their MLRs which were annexed with the application.
4. Muhammad Sharif, S.I. (PW-14) had conducted the investigation of the case from 20.4.2001 to 6.5.2003, who on 21.4.2001, had visited the place of occurrence, recorded the statements of the witnesses under Section 161 Cr.P.C. Zafar Iqbal, Ghulam Rasool, Inayat and Zafar Ali were arrested by him on 30.4.2001. Ghulam Rasool appellant and Zafar Iqbal acquitted accused while in police custody led to the recovery of sotas which were taken into possession by him, vide recovery memo Ex. PB and Ex. PC, respectively.
5. Thereafter, the investigation was entrusted to Farzand Ali, S.I. (PW-15), who added Sections 302/148/149 PPC as Muhammad Anwar injured had died. He too visited the place of occurrence, prepared inquest report Ex.PO, injury statement Ex. PP. He also sent the dead body of the deceased to mortuary for autopsy through Muhammad Afzal and Muhammad Ayyub, constables. Khadim, Nasar, Zafar, Munawar, Arif, Ghulam Rasool and Sarwar after rejection of their bail petitions were arrested by him and while in police custody Munawar and Arif got recovered sotas (Kikkar) P-6 and P-7 which were taken into possession vide recovery memos Ex. PL and Ex. PM. He also recovered the statements of the PWs under Section 161 Cr.P.C.
6. After conclusion of the investigation, report u/S. 173 Cr.P.C. was submitted in the Court and copies of the documents required under Section 265-C Cr.P.C. were supplied to the appellants and their co-accused, who were charge-sheeted on 5.7.2003 which was denied by them and they claimed to be tried.
7. The prosecution in order to prove the guilt of the appellants produced as many as fifteen witnesses. The ocular account was furnished by PW-9 Mst. Samina, Inayat Ali (PW-10), Muhammad Aslam (PW-11) and Riasat All (PW-12). Medical evidence was produced by Dr. Tahawar Hussain, Medical Officer, Rural Heath Centre, Kharianwala who on 15.4.2001 had medically examined Muhammad Anwar deceased in injured condition, Muhammad Aslam (PW-11), appellant Arif Ali and Khadim Hussain acquitted accused and Dr. Sohail Khyzar, Medical Officer, DHQ Hospital, Sheikhupura, who on 8.5.2001, had conducted the postmortem examination on the dead body of Muhammad Anwar deceased. The investigation was conducted by Muhammad Sharif, S.I. (PW-14) and Farzand Ali, S.I. (PW-15). The remaining of the evidence is more or less of formal nature and need not to discuss there.
8. After close of the prosecution witnesses, statements of the appellants under Section 342 Cr.P.C. were recorded in which they denied the allegations and professed their innocence. However, they had neither produced any evidence in their defence nor they had opted to make statement under Section 340(2) Cr.P.C.
9. After hearing the learned counsel for the parties, the learned trial Court passed the impugned judgment of conviction and sentence against the appellants which is being assailed through these appeals.
10.Learned counsel for the appellant contends that postmortem examination on the dead body of Muhammad Anwar deceased was conducted by Dr. Sohail Khizar (PW-6), but he had not noted down any injury on the person of the deceased which could cause death to the deceased and in spite of that Ghulam Rasool appellant has been convicted under Section 302(b) PPC and sentenced to imprisonment for life; that Anwar deceased was medically examined by Dr. Tahawar Hussain (PW-5), who found that the injured was 55 years of old on 15.4.2001 at the time of his medical examination and noted down two injuries but none of the injury was serious in nature as he was not produced before the Radiologist for opinion. It is also contended that on the same day PW-5 Dr. Tahawar Hussain also medically examined Muhammad Aslam and found five injuries caused with blunt weapons that on the same day Arif Ali appellant was also medically examined by him and one injury was found on his body while during medical examination of Khadim Hussain acquitted accused he found three injuries out of which Injury No, 1 was caused by a sharp edged weapon while Injuries Nos, 2 and 3 were caused with blunt edged weapon that the said doctor has admitted during the cross-examination that he had not given any opinion regarding injuries of Anwar deceased as no report regarding those injuries was received by him which shows that he had not received any serious injuries; that the eye-witnesses had not spoken the whole truth as they concealed the injuries on the persons of Arif Ali appellant and Khadim Hussain acquitted accused and the occurrence had not taken place in the manner narrated by the PWs; that minor altercation had taken place between the parties and medical evidence is in contradiction with the ocular account as 13 accused were nominated in this case alleging to have caused injuries to the complainant party with Danda/Sotas and throwing or brick bats, but only 2 injuries in the nature of complaint of pain and contused swelling on the person of Muhammad Anwar and five injuries on the person of Muhammad Aslam (one lacerated wound and four bruises) were noted down by the doctor; that name of Ghulam Rasool appellant was not stated by Mst. Samina Bibi (PW-9) who claimed her to be an eye-witness; that Ghulam Rasool appellant was not attributed any specific injury on the person of the deceased; that the ocular account was not worthy of reliance as the eye-witnesses have contradicted each other and the prosecution has miserably failed to prove the guilt against the appellant.
11. The learned counsel for the state opposes this appeal on the ground that the prosecution has succeeded in proving the case beyond any shadow of doubt by producing four eye-witnesses and the, judgment of conviction and sentence is liable to be maintained.
12. I have heard the learned counsel for the parties and also perused the record with due care and caution.
13. According to the prosecution story the occurrence had taken place on 15.4.2001 at 11/12 noon but the case was got registered on 20.4.2001 by Inayat Ali complainant (PW-10) by moving an application (Ex. PK/1) in which allegations had been levelled against both the appellants and the acquitted .accused that they had caused injuries on the persons of Muhammad Aslam (PW-11), Anwar deceased and Mst. Samina Bibi (PW-9). No specific injury was attributed to any of the accused on the person of the deceased. On the other hand, PW-5 Dr. Tahawar Hussain, who had medically examined Muhammad Anwar had found only two injuries and then referred the matter to Radiologist to ascertain the nature of the injuries. Admittedly, Muhammad Anwar in injured condition was not produced before the Radiologist and final opinion was not obtained. So it can be safely said that the said injuries were simple in nature. Even according to the complainant PW-9 after first aid others went to their houses whereas Muhammad Aslam (PW-11) has contradicted PW-9 while stating that Muhammad Anwar remained admitted in hospital, who then was discharged from the hospital and he had been living in the village and died subsequently.
14. The post-mortem examination on the dead body of Muhammad Anwar deceased was conducted on 8.5.2001 by Dr. Sohail Khizar (PW-7), after about 18 days of the incident, but he had not noted down any injury on the person of the deceased rather according to him all the organs were healthy and cause of death was declared as peritonitis leading to septicemia Wading to cardio-respiratory failure. In his statement it is nowhere mentioned that the said cause of death was, due to the injuries allegedly received by the deceased during the incident. There is nothing in the postmortem report or in the statement of PW-6 that the deceased had received injury and due to the receiving of the said injuries the septicemia had developed resulting in failure of cardio- respiratory. Hence, it can safely be held that the medical evidence is in conflict with the ocular account that death of the deceased was the result of the injuries caused to him in the incident dated 15.4.2001 which was reported on 20.4.20D1 by Inayat- Ali (PW-10). Admittedly he died in the village after about 23 days of the occurrence, but the prosecution has not been able to prove that the deceased had died due to the injuries received by him in the occurrence dated 15.4.2001. Even the said two injuries were not specifically attributed to any of the accused and did not commensurate with the number of the accused, who were stated to be 12/13. It is strange that on the same evidence 10 accused have been acquitted from the charge under Section 302(b) PPC and how the case of Ghulam Rasool appellant was distinguishable, who has been convicted and sentenced for the said charge. Even name of Ghulam Rasool appellant was omitted by Mst.
Samina (PW-9), who was alleged eye-witness. PW-11 Muhammad Aslam stated that Muhammad Anwar was made naked by the accused and he gave kick blows to the accused as well, which fact was not stated by any other eye-witness. It appears that this improvement was made by him to cover up the injuries received by Muhammad Arif appellant and Khadim Hussain acquitted accused during the same incident.
15. The perusal of the prosecution evidence shows that all the eye-witness have contradicted each other on certain points which are material in nature. First of all the F.I.R. was got registered on 20.4.2001 which 5 days delay after the incident allegedly took place on 15.4.2001 but the complainant (PW-10) stated that after medical examination of the injured he went to the police station, where he got registered the case through Application (Ex. PK/1). Muhammad Aslam (PW-11) has also stated so. An inference can safely be drawn that the F.I.R. was not recorded in the manner narrated by the prosecution and the possibility of due deliberation and concoction of story cannot be ruled out. Both PW-10 and PW-11 stated that modesty of Mst. Samina Bibi was outraged by Muhammad Arif appellant during the occurrence, but when appeared as PW-9, said Mst. Samina did not level any such allegation. Moreover, she was also alleged to have caused injuries by the accused during the occurrence but no medico legal report of Mst. Samina Bibi was brought on the record to corroborate the said allegation. She had not nominated Ghulam Rasool appellant.
According to him Amanat Ali complainant was also caused injuries, but he was not medically examined. Even the injuries on the person of Muhammad. Aslam (PW-11) which were five in number were not explained by the PWs in line with each other. Injury No, 1, which was a lacerated wound falling under Section 337-A(ii) PPC was attributed by Muhammad Aslam (PW-11) to Ghulam Rasool appellant, but the latter was even not nominated by Mst. Samina Bibi (PW-9) and though complainant (PW-10) stated that Ghulam Rasool inflicted seta blow, but did not mention that to whom it landed. Though Muhammad Arif appellant has been attributed an injury on the arm of Muhammad Aslam by the three PWs-9, 10 and 11, but in the F.I.R. no specific injury was attributed to any of the accused. Even the said injury was only a bruise. Even all the eye-witnesses have been confronted on certain points with their previous statements recorded by the police during the cross-examination.
16. The defence has also been able to bring on record that the complainant party was inimical towards Muhammad Arif etc. as their relative Mst. Shahnaz was wife of Ashiq son of the complainant, who one night was found misplaced from the house of her in-laws after a quarrel with her husband. The complainant party was blamed for throwing her in the canal whereupon they were tortured by the police. Due to this reason the possibility of false implication and exaggeration of roles played by the accused cannot be ruled out.
17. Even otherwise, injuries on the person of Muhammad Arif appellant and Khadim Hussain acquitted accused have been suppressed by the prosecution and the eye-witnesses appears to have not spoken the whole truth, who had concealed the roles prayed by them during the incident.
The eye-witnesses have also concealed the cause of the incident which allegedly took place on 15.4.2001 and the F.I.R. in the present case was got lodged with the delay of 5 days without any explanation. The perusal of statement of PW-10 also shows that there was party faction in the village and both the parties were supporting the opponents in the political fields and it seems that the complainant party due to the intervention of the influential persons had succeeded in getting registered the case in spite of the fact that one of the acquitted accused namely Khadim Hussain had received more serious injuries on the vital part of his body.
18. After perusal of the whole record it appears that minor incident had taken place between the parties resulting in receiving of some simple injuries by both the parties while the complainant party had suppressed the injuries on the pemons of Arif Ali appellant and Khadim Hussain acquitted accused. I have no hesitation in holding that the prosecution had not been able to bring home guilt to the appellants of any charges under Sections 302/324/354 PPC beyond any shadow of doubt. Though one injury failing under Section 337-A(i) PPC was attributed by Muhammad Aslam injured (PW-11) to Ghularn Rasool appellant and one bruise to Muhammad Arif on the arm, but said PW has not been proved to be a truthful witness, hence he cannot be relied upon for recording conviction. Moreover, more serious injuries were received by the accused party during the incident, but the complainant party could not be accounted therefor. In such circumstances, the impugned judgment of conviction and sentence is not sustainable in the eyes of law, which is set aside, both Crl. Appeal No, 1230 of 2004 and CrL Appeal No, 1239 of 2004 are accepted and both Muhammad Arif and Ghulam Rasool appellants are acquitted of all the charges. Arif Ali appellant is already on bail and his surety shall be discharged of the liability while Ghulam Rasool appellant shall be set at liberty forthwith, if is not required in any other case.
19. Before parting from this judgment, I am constrained to comment upon the judicial approach of Rana Abdul Hafeez, Additional Sessions Judge, Sheikhupura, who had delivered the judgment under appeal whereby he had convicted Muhammad Arif appellant under Section 354 PPC for outraging modesty of Mst. Samina Bibi, but while appearing as PW-9, the said lady did not level any such allegation. Then Ghulam Rasool appellant was convicted under Section 302(b) PPC and sentenced to life imprisonment while observing in Para No, 36 of the judgment. The Ghulam Rasool was the person who inflicted sota blow to Muhammad Anwar", but the perusal of the evidence of the eye-witnesses produced by the prosecution did not contain any specific allegation against him. Rather PW-9, had not named Ghulam Rasool appellant. The Dr. Sohail Khizar (PW-7) during postmortem examination of Muhammad Anwar deceased did not observe any injury and cause of death was declared as peritonitis leading to septicemia leading to cardio-respiratory failure. It is astonishing to note that when on the same evidence the other co-accused had been acquitted of the said charge, Ghulam Rasool appellant was sentenced to life imprisonment without there being any features to distinguish' his case. The Member Inspection Team of this Court is directed to place the judgment dated 18.6.2004 passed by Rana Abdul Hafeez, Additional Sessions Judge, Sheikhupura before the learned Inspection Judge concerned, who may consider to forward the case of the said Judicial Officer to the Competent Authority to consider that whether such type of Judicial Officers can be allowed to continue in service to play with the life and liberty of the citizens.