' MUHAMMAD AHSAN BHOON, J.---This judgment shall dispose of Criminal Appeal No,761 of 2004 filed by Gulbaz, Allah Bakhsh, Karam Dad and Muhammad Ishaq, against their conviction and sentence; Criminal Revision No,419 of 2004 filed by Muhammad Ayu'b for the enhancement of conviction and sentences and fine of respondents Nos.1 to 4 namely Gulbaz, Allah Bakhsh, Karam Dad and Muhammad Ishaq and Cr.P.S.L.A No,37 of 2004 filed by Muhammad Ayub against acquittal of Muhammad Hayat, Ameer Afzal, Abdul Sattar, Ahmad Sher, Fateh Ali and Shah Muhammad, respondents Nos.1 to 6 as all arise out of case registered vide F.I.R. No,78 dated 7-10-2002, with Police Station, Naushera, District Khushab, for offences under sections 302/149/364/ 324, P.P.C. They all were tried in the above mentioned case by the learned trial Court who after concluding the trial vide its judgment dated 22-4-2004 convicted Gulbaz, Allah Bakhsh, Karam Dad and Muhammad Ishaq under section 302 (b), P.P.C. For the commission of Qatle-i-Amd of Ghulam Muhammad deceased and sentence them to imprisonment for life each as Tazir along with compensation of Rs,70,000 each payable to the legal heirs of the deceased, recoverable as arrears of land revenue and in case of default of compensation to further undergo six months R.I. Each while acquitted Muhammad Hayat, Amir Afzal, Abdul Sattar, Ahmad Sher, Fateh Ali and Shah Muhammad. Through this judgment I shall also dispose of Crim. Misc.No,555-M of 2008 seeking restoration of Crim.
Appeal No,759 of 2004 filed by Karam Dad against acquittal of Muhammad Ashraf in cross version of afore-referred F.I.R.
2. Prosecution story as narrated is, that Muhammad Ayub complainant got registered case F.I.R.
No,78 on 7-10-2002, offences under sections 302/324/364/148/ 149, P.P.C. In Police Station Naushera, that on 6-10-2007, when he along with Ghulam Muhammad (deceased), Muhammad Ashraf (P.W), Mehr Ali (not examined) and Sultan Mahmood (P.W.) was coming to his house and when at 6-15 P.M. They reached near the house of Elahi Bakhsh, accused Allah Bakhsh armed with .12 bore gun, Muhammad Hayat empty handed, Muhammad Ishaq, Karam Dad, and Gulbaz each armed with .12 bore guns reached there. Muhammad Hayat accused raised alarm not to spare complainant party upon which Gulbaz made fire hitting Ghulam Muhammad on above the left knee. Muhammad Ishaq fired with his .12 bore gun-hitting deceased on his forehead who fell down. Accused Allah Bakhsh and Karam Dad had been making aerial firing. Meanwhile, Ameer Afzal, Abdul Sattar, Ahmad, Sher, Fateh Ali and Shah Muhammad all armed with. 12 bore gun each reached there and gave butt blows with their guns to Mehr Ali and took him along with them, who might have been murdered. Ghulam Muhammad succumbed to the injuries at the spot. The motive behind the occurrence as alleged in the F.I.R. Was a dispute over passage between son-in-law of Ghulam Muhammad deceased and accused party and deceased supported his son-in-law.
3. During investigation of said case, Karam Dad, being one of accused of the above murder case made statement before Investigating Officer to the effect that on 6-10-2002, he along with Allah Bakhsh was coming back to him from his land. When they both at about 6-15 p.m. Reached near the house of Ellahi Bakhsh, accused Ghulam Muhammad, Mehr Ali armed with .12 bore guns and Muhammad Ashraf empty handed came over there while raising lalkaras. Meanwhile, Gulbaz also attracted. Mehr Ali raised lalkara that they would teach them a lesson for rendering assistance of Muhammad Ishaq to the other party in dispute of passage and fired with his ..12 bore gun hitting on his testies. Ghulam Muhammad (deceased) fired with his .12 bore gun hitting on the palm and right hand of Allah Bakhsh. Muhammad Ashraf present accused had been raising lalkaras exerting his brother to kill them and he himself picked up a stone and threw upon him hitting on his right shoulder.
' Motive behind this occurrence is that Sher Muhammad, son-in-law of Ghulam Muhammad deceased and brother-in-law of Mehr Ali and Ashraf has closed the passage of inhabitants of village Kalyal. Ghulam Muhammad deceased with his son was helping said Sher Muhammad whereas Muhammad Ishaq was assisting the inhabitants of village for restoration of passage. Due to this grudge, Ghulam Muhammad, Mehr Ali and Muhammad Ashraf with their pre-consultation launched murderous assault and caused injuries upon him and Allah Bakhsh. Besides them, Gulbaz witnessed occurrence also, Gulbaz have brought them in injured condition to Civil Hospital, Naushera from where they were referred to Civil Hospital, Jauharabad. He produced MLRs of himself details of occurrence as alleged in F.I.R. No,78 of 2002 with some improvements wherein after cursory evidence the accused-respondents were summoned, and charge against them was framed by the learned trial Court (Mr. Muhammad Arshad Malik, Addl. Sessions Judge, Khushab).
5. The complainant produced his evidence. Statements of the accused were recorded under section 342, Cr.P.C. In which they were confronted with all the incriminating material on record against them but they denied the same and on a question as to why this case against them and why the P.Ws. Had falsely deposed against them, they replied that P.Ws. Have falsely deposed against them in order to conceal the aggression of complainant party. None of them opted to appear in his own defence as witness as required under section 340(2), Cr.P.C. In answer to question No,15 Gulbaz, appellant-accused stated as under:-- ' " I am innocent. In fact Ghulam Muhammad deceased and his other relatives are having criminal history. They shifted from village Dacca to Kalyal and tried to grab the lands of the villagers by adopting different ways and due to the nefarious activities of the deceased whole village was fed up with him and the people of the village socially bye-cotted the deceased over the blockage of their passage leading to their deras. This fact was determined through the report of Patwari and Girdawar dated 4-10-2002 and that on 6-10-2002 when Karam Dad and Allah Bakhsh were coming back to the village from their lands and when they reached near the house of Ellahi Bakhsh, Ghulam Muhammad deceased armed with gun, Mehar Ali armed with gun and Muhammad Ashraf all of a sudden attacked them and caused them fire-arm injuries and during the attack on Karam Dad and Allah Bakhsh, matter was announced on the loudspeaker of the Mosque of the village that Ghulam Muhammad and his companion had killed Karam Dad and Allah Bakhsh and on hearing this announcement almost the whole village rushed to the scene of occurrence and in order to save Karam Dad and Allah Bakhsh reached there whereupon Mehar Ali fired at the mob and villagers also retaliated. Complainant party made aggression on Karam Dad and Allah Bakhsh.
Remaining accused made statements on the same lines."
6. However, Karam Dad accused produced in his defence Atta Muhammad Hasrat Postmaster, Post Office, Sodhi Jaywali as DW-1 who deposed that he brought ledger No,2 of the post office. Mehr Ali son of Ghulam Muhammad was account holder No,10495 and Rs,3 Lac was deposited in the said account. On 8-4-2003 Mehr Ali withdrew an amount of Rs,3,18,000 including profit. Mehr Ali himself withdrew the amount; copy of I.D was attached with the ledger sheet which was Exh.D.B. He also produced Muazzam Khan, (D.W.2) Naib Moharrir, P.S. Katha Saghral who deposed that he brought the original register of F.I,Rs, regarding the year 1985 which contains F.I.R. No,81 dated 3-10-1985 under sections 440/430, P.P.C. (Exh.DC), registered on the statement of Muhammad Siddique Mine Engineer, original register containing F.I.R. No,111 dated 5-11-1987 under section 430, P.P.C. (Exh.DD) registered on the application of Rehm Ali Chairman Union Council Nalli, original register of F.I.R. No,6 dated 18-1-1995 (Exh.DE) registered on the statement of Ch. Muhammad Ahmad under sections 430/444 P.P.C. And original register of F.I.R. No, 103 dated 17-7-1998 under section 13 Arms Ordinance XX of 1965 (Exh.DF) registered against Ghulam Muhammad son of Surkhru Khan. Also produced Dr. Abid Ali Makhdoom, (DW-3) Surgeon D.H.Q. Hospital Jahurabad who deposed that on 7-10-2002 he was working as. Surgeon Doctor in D.H.Q. Hospital Jauharabad. Karam Dad and Allah Bakhsh were referred to D.H.Q. For surgical treatment from THQ Hospital, Naushera. Allah Bakhsh had received fire-arm injury on left hand operation debridment and wash down with normal saline was done.
Operation notes of Allah Bakhsh were in his hand and bear his signatures, copy of which Exh.DG. On the same day, he also operated Karam Dad who was having injury of right testies and penis. His wound was explored and right testies found to be perished into pieces. Right orchiectomy was done. Surrounding mussels, stiched. Heamo-sites secured folly's catheter passed. Wound left opened and packed. Operation notes pertaining to the said patient are in his hand and bears his signatures, which are Exh.DH (objected by complainant's counsel). Accused Karam Dad also tendered in his evidence attested copy of MLC No,71 of 2002 Exh.DJ, copy of MLR No,72/2002, Exh.DK, attested copy of statement of Doctor Sher Afzal Exh.DL, attested copy of complaint Exh.DM, report of cross case under section 173, Cr.P.C. Exh.DN, attested copies of statement of Karam Dad and Allah Bakhsh dated 4-3-2002 Exh.D0 and Exh.DP respectively.
7. After hearing the learned counsel for the parties and going through the record, I have found that in the F.I.R. (Exh.PM) lodged by the complainant (P.W.9) Muhammad Ayub nephew of the deceased Ghulam Muhammad assigned the role of fire-arm injury hitting the left knee of Ghulam Muhammad deceased to Gulbaz whereas, the appellant Muhammad Ishaq was assigned role of fire hitting on forehead of deceased and the appellants-accused Karam Dad and Allah Bakhsh were attributed role of ineffective firing. Similarly, acquitted accused Ameer Afzal, Abdul Sattar, Fateh Muhammad, Ahmad Sher were attributed role' that they caught hold P.W. Mehr Ali and took him away forcibly; the acquitted accused Muhammad Hayat being empty handed was assigned role of Lalkara.
8. After registration of the above-mentioned F.I.R. The complainant was dissatisfied, as the Investigating Officer had recommended for the discharge of Muhammad Ishaq, convict-appellant and acquitted accused Muhammad Hayat. So, he filed the private complaint.
9. In private complaint the complainant made improvements and acquitted accused Muhammad Hayat was attributed the role of fist blows whereas, Karam Dad convict-appellant was assigned the role of butt blows on the right chest of the deceased. Similarly, the appellant-convict Allah Bakhsh was also assigned the role of butt blows on- the left chest of the deceased. As abovementioned improvements for the purpose of prosecution case were required to bring the case in line with the medical evidence/ Postmortem report of the deceased Ghulam Muhammad.
The above pointed out improvements were duly confronted with the earlier statement made by the complainant in the F.I.R. In this scenario the contradictions between medical as well as ocular account are flouring on the surface and these contradictions have demolished the whole case of the prosecution as far as appellants-accused Karam Dad and Allah Bakhsh are concerned. As they were not attributed any ineffective role in F.I.R. And the allegation against them as per F.I.R. Was of only aerial firing. Later on, they were assigned role in the private complaint. So in the backdrop of previous hostility between the parties their conviction and sentence cannot be sustained when interested and inimical witnesses have furnished ocular account.
10. Similarly accused Muhammad Ishaq, who allegedly caused fire-arm injury on the forehead of the deceased as per F.I.R. As well as private complaint filed by Muhammad Ayub (P.W.9) still in contradiction with medical evidence/Postmortem report. The medical officer in his cross- examination sated that the injury was on the head of the deceased caused by blunt weapon. Even according to bare reading of postmortem report injury No,4 on the forehead of the deceased was lacerated wound and due to said injury skull was exposed and there was no exit wound and even no bullet or pallet was recovered on dissection. So postmortem report absolutely negates the ocular account furnished by P.W.9 (complainant), nephew of the deceased as far as Ishaq appellant is concerned.
11. Another important aspect of the case is that the accused Muhammad Ishaq was found innocent during investigation and was placed in column B No,2 of the challan and was recommended for discharge.
12. It is also another important aspect of the case that it is a case of cross version. The accused/appellant Karam Dad sustained three injuries out of which injury Nos.1 & 2 were caused by fire-arm weapon hitting on the testies of Karam Dad. Same was attributed to Mehr Ali, P.W.
Eyewitness (not examined), whereas injury caused by blunt weapon was assigned to Muhammad Ashraf (P.W.10 of F.I.R's case). Fire-arm injury suffered by Allah Bakhsh on the right head was attributed to Ghulam Muhammad, deceased and all these injuries were suppressed by the complainant Muhammad Ayub (P.W.10), and other P.Ws in the F.I.R. As well as in the complainant.
Even at the time of inspection of place of occurrence Investigating Officer (CW-1) Aziz S.I. Collected blood stained earth from the spot and also took into possession .12 bore (S.B) gun through memo.
Exh.PA near the dead body of the deceased Ghulam Muhammad. It was case of the complainant that there was dispute of passage between the complainant party, and the accused. The other people of the village had boycotted the complainant on that dispute and that was the cause of occurrence. It was the case of the accused in cross version that the complainant party was aggressor and this plea was taken by the accused Gulbaz etc. In their statements under section 342, Cr.P.C. It was further confirmed by the Investigating Officer (DW-3) that this was the first version of the accused/appellants before him and it was found correct during his investigation. As the whole plea of the appellant was admitted as correct by the Investigating Officer while appearing before the learned trial Court.
13. Here I may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceedings" to minimize one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from draw the inferences that properly flow from the evidence and circumstances. There is sufficient and satisfactory evidence that there was dispute between the parties over the passage. There is however, no satisfactory evidence that either party was in exclusive or undisturbed possession of the same. A legitimate conclusion, therefore, can be drawn that on the alleged day of occurrence parties went to enforce their right or supposed right in the disputed passage and for this purpose they armed themselves with full expectation of an armed conflict. Hence, judging from their acts and conduct I think it can safely be said that each party anticipated resistance from the other one and both were, therefore, determined to have a trial of strength. From the state of relations between the parties, it is also clear that both the parties were prepared to fight and that a very trivial incident was sufficient to bring them into conflict. I think it is reasonable to infer that in entering upon that conflict each party knowingly and deliberately took upon itself the risk of the encounter. In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forth by the accused might be true, it is clear that such a view reacts on the whole prosecution case. Plea of self-defence was not specifically taken in the trial Court.
14. It seems from the evidence on record that both the parties have not spoken truth before the Court, yet while putting both version in juxtaposition the plea of the appellant seems to be more plausible, therefore, I can safely conclude that this was a case of free fight between the parties wherein role of each accused is to be adjudged at the touchstone of evidence available on record in accordance with E principle of administration of justice in criminal case. The above discussion would show that prosecution had failed to discharge onus of proving its case against the appellants Allah Bakhsh, Karam Dad, Muhammad Ishaq. So, the Crl. Appeal No,761 of 2004 to their extent is allowed and they acquitted of the charge by giving them benefit of doubt. They be released forthwith if not required in any other case.
15. As far as role of Gulbaz accused/ appellant is concerned, he had been attributed a fire-arm injury hitting left leg of the deceased with .12 bore gun. Same is borne out from the medical/Postmortem report which would show that Injury No,1-A and injury No, 2-A are very much available on the left leg. Although recovery was not effected from him. Role assigned to him in the ocular account is corroborated by medical evidence. So his case would fall within purview of section 302(c), P.P.C, keeping in view the facts and circumstances of the case, conviction is altered to section 302(c), F P.P.C. Sentence recorded against him is altered to 7 years. He is also granted benefit of section 382-B, Cr.P.C. Resultantly, Crim. Appeal No,761 of 2004 is disposed of to the extent of Gulbaz with the above modification in the conviction and sentence awarded to him.
16. As far as Criminal Appeal No,759 of 2004 filed by the complainant-appellant Karam Dad against acquittal of Muhammad Ashraf, therefore, the judgment of cross version is concerned, the same was dismissed by this Court vide order dated 23-6-2004 due to non-prosecution and in the said appeal Crim. Misc. No,555-M of 2008 has been filed on 3-4-2008, with the delay of four years. No cogent reasoning has been put forth. It is hopelessly time barred. Even no application for condonation of delay has been filed with the application for restoration of appeal. In this view of the matter this petition having no force is dismissed.
17. As far as PSLA No,37 of 2004 is concerned, I find that there is on record that none of the acquitted accused was attributed any effective role and even P.W. Mehar Ali, eyewitness intentionally did not appear, which shows that the learned trial Court on appreciation of evidence recorded acquittal of the respondents through well reasoned judgment. The reason advanced by the learned trial Court for recording acquittal of the respondents have not been found by me to be either perverse or fanciful to their extent. In these circumstances, I have found no occasion for interference with the impugned judgment to the extent of acquittal. Double presumption G of innocence is attached to a judgment of acquittal passed by the competent Court. In this view of the matter this petition having no merits is dismissed.
18. As far as Crim.Misc.No,552-M of 2008 in Criminal Appeal No,761 of 2004 is concerned, whereby the petitioner seeks recording of additional evidence of one Mehr Ali P.W. After summoning him from the Jail. Learned counsel contends that Mehar Ali P.W. The star witness of the alleged occurrence of murder of Ghulam Muhammad, could not be produced as he was kidnapped by the accused of F.I.R. During the occurrence and he was not recovered up till the conclusion of the trial H and police under the influence of accused of F.I.R. Declared abovesaid Mehar Ali absconder and soon after the judgment passed by the learned trial Court he was released and that is why he could not appear before the learned trial Court to depose/corroborate the ocular account. He contends that if statement of Mehar Ali is not recorded that would cause grave miscarriage of justice. He has relied upon the judgment reported as 1969 SCMR 4489, 2005 YLR 3280 and 2004 SCM R 966.
19. After hearing the learned counsel, I find that no doubt provisions of section 428, Cr.P.C.
Authorizes the appellate Court, if it thinks additional evidence to be necessary to record its reasons, and to take such evidence in the interest of justice yet this discretion must be exercised in a judicious manner but capricious and arbitrary exercise of this discretion is not permitted by law.
Similarly, the Court after considering the facts and circumstances of the case can evaluate whether any party was not able to *duce evidence at trial on account of circumstances beyond its control and production of which was necessary on the face of record, then the evidence could be allowed to be produced but at the same time Court must be mindful of the fact that additional evidence should not be allowed to be produced at belated stage only to advance the cause of one party, a complainant or the accused to fill the lacuna, for which the benefit has been given to any of the parties. Main object of section 428, Cr.P.C. Relating to production of additional evidence is that a guilty person should not escape due to carelessness or ignorant proceedings of the trial Court, or innocent person should not be wrongly accused, when the Court due to some carelessness or ignorance omits to record the circumstances essential to explain, or reach at the truth but in the instant case, it was never the case before the learned trial Court that prosecution was prevented from the production of evidence of Mehar Ali P.W. As it is available from judicial record that above said Mehar Ali P.W. Was declared absconder, process was duly issued by the Court and he intentionally remained away from the proceedings, so at this stage, this application cannot be allowed to fill the lacuna of prosecution according to wishes and whims of the complainant party of the above said F.I.R. Reliance can be had to 2004 SCM R 966. In this view of the matter, this petition having no merits is dismissed. Consequently, Criminal Revision No,419 of 2004 is also dismissed.