Akhtar Zaman Malghani, J.--By this common judgment we intend to dispose of Criminal Appeal No, 299/2005 and Criminal Revision No, 98 of 2005 arising out of the same and common judgment dated 27.09.2005 rendered by Sessions Judge, Loralai whereby appellant Juma Khan was convicted under Section 302 (c) P.P.C to 14 years R.I with fine of Rs. 100,000/- to be paid to the legal heirs of deceased Muhammad Naseem and five years R.I.under Section 324 P.P.C with fine of Rs.
50,000/- or in default thereof to further undergo six months S.I. Benefit of Section 382-B Cr.P.C was also extended in his favour.
2. Briefly stated, facts of case are that on 30.07.1990 a case under Sections 302 and 307 P.P.0 was registered in Levies Station Bori (Loralai) on the report of one Akhoonzada Abdul Baqi wherein it was stated that on the same day he received information about death of Muhammad Naseem who was injured in the fight. Apart from Muhammad Naseem, two other persons namely Abdul Hanan and Baseer Khan were also injured in the incident. On his report case was investigated by Mulazim Hussain, Naib Tehsildar Bori under Ordinance-II of 1968 who submitted challan before the Assistant Commissioner with the power of Deputy Commissioner who constituted Tribunal for enquiry. It appears from record that Deputy Commissioner on recommendation of tribunal sentenced the appellant to 14 years R.I. with fine of Rs. 50,000/- whereas co-accused Fateh Khan was sentenced to one year R.I with fine of Rs. 30,000/-. Similarly co-accused Adam Khan, Nasrullah -and Jamal-Ud-Din were awarded one year sentence. All the convicts preferred appeal against their conviction before the Commissioner Zhob as provided under the Provisions of Criminal Law (Special Provisions) Ordinance-II of 1968 which was dismissed. Revision petition filed by them before MBR was also dismissed. The other convicts thereafter did not further assail the conviction order whereas appellant invoked constitutional jurisdiction of this Court whereupon this Court vide judgment dated 10.04.1999 set aside all the three orders passed by forums set-up under Ordinance-II of 1968 and remanded the case to Deputy Commissioner, Loralai for trial of petitioner after reconstituting Tribunal. It appears from record that thereafter the matter remained pending before the Tribunal when Ordinance-II of 1968 was repealed. Similarly after devolution plan post of Deputy Commissioner, Assistant Commissioner, District Magistrate and Sub Divisional Magistrates were abolished and no forum was left available for trial of cases which remained pending at the time of repeal of Criminal Law (Special Provisions) Ordinance-II of 1968 whereupon the complainant party preferred constitutional petition being No, 614/2001 before this Court wherein it was directed that his case be referred to the Sessions Judge for trial but if appellant was found guilty, he would be liable to the sentence maximum up to 14 years as was provided under Ordinance-II of 1968 hereafter trial was conducted by learned Sessions Judge, Loralai who read over the charge to appellant, to which he pleaded not guilty. The prosecution in order to substantiate the accusation produced following five witnesses:--
(i) P.W. 1 Said Khan deposed that on 30.07.1990 he went to vialla(Irrigation channel) as it was his turn of water and noticed that appellant, Juma Khan, Adam Khan, Fateh Khan, Muhammad Din, Abdul. Sattar, Nasrullah, Moula Dad, Essa Khan and Jamal-Ud-Din had blocked the water by putting stones in the channel, to which he protested whereupon Fateh Khan directed his companions to attack upon him. He further stated that Juma Khan (appellant) inflicted Knife blows to him. His hue and cry attracted Muhammad Naseem, Abdul Wahab, Muhammad Naeem and Jan Muhammad to the spot. Juma Khan also inflicted Knife blows to Naseem and Abdul Hanan.
According to him other accused persons also attacked upon them with sticks on account of which he, Muhammad Naseem, Muhammad Naeem, Abdul Hanan and Abdul Wahab sustained injuries and Muhammad Naseem later on succumbed to his injuries. He admitted in cross-examination that on 31.07.1990 he had moved an application to Deputy Commissioner wherein he had not stated that appellant inflicted Knife blows to Muhammad Naseem. He was also confronted with his statement under Section 161 Cr.P.0 wherein he alleged that Fateh Khan, Muhammad Din and Abdul Sattar inflicted Knife blows to Muhammad Naseem. He denied the suggestion that Fateh Khan, Adam Khan and Essa were also injured in the incident as they assaulted them.
(ii) P.W.2 Muhammad Naeem deposed that on hearing hue and cry he came out of house and came to the spot alongwith his brother Muhammad Naseem where appellant Juma Khan inflicted Knife blow to Muhammad Naseem whereas other accused persons namely Fateh Khan, Adam Khan, Nasrullah, Muhammad Din, Essa Khan, Moula Dad and Sattar were beating his father. On his arrival Muhammad Din and Jamal-Ud-Din assaulted him. Similarly when Abdul Hanan arrived at the spot Moula Dad, Fateh Khan & Jurna Khan inflicted him Knife blows. In cross-examination he was confronted with his statement recorded under Section 161 Cr.P.0 wherein he has not mentioned about inflicting of Knife blows by appellant Juma Khan to Muhammad Naseem but it was stated in his such statement that Fateh Khan, Juma Khan, Adam Khan, Moula Dad and Abdul Qadir who were armed with Knives were beating his father and brother. He admitted in cross-examination that prior to incident a fight took place between the accused party and Muhammad Naseem. He denied the suggestion that on account of their attack, Fateh Khan, Juma Khan and Essa Khan sustained injuries.
(iii)P.W.3 Abdul Hanan deposed that on 30.07.1990 on hearing hue and cry he went to the place of occurrence where he. saw his uncle Said Khan removing obstruction from the water channel where Fateh Khan, Juma Khan, Adam Khan, Nasmilah, Muhammad Din, Sattar, Moula Dad, Jamal-Ud-Din and Essa Khan were also present. In the meanwhile Nasrullah and Moula Dad came there and started abusing Said Khan. He further stated that Fateh Khan caught hold of Said Khan and appellant Juma Khan inflicted him Knife blows. In the meanwhile Muhammad Naseem also came there to whom appellant also caused Knife injuries whereupon he came forward who was also injured by Juma Khan. In cross-examination he was confronted with his statement under Section 161 Cr.P.C wherein he has not stated that appellant Juma Khan inflicted Knife blows to Naseem but it was stated that Fateh Khan, Muhammad Din, Adam Khan, Juma, Nasrullah, Sattar, Essa Khan and Jamal-Ud-Din inflicted several blows.
(iv)P.W.4 Dr. Sheikh Akhtar Muhammad examined the dead body of Muhammad Naseem and the injured and found following injuries:-- INJURIES OF MUHAMMAD NASEEM.
1. Swab wound just below left scapula, which is cavity deep. INJURIES OF SAID MUHAMMAD.
1. Incised wound inch which is chest cavity deep at the left shoulder. Margin of the wound is 1/3 inch.
INJURIES OF ABDUL HANAN.
1. Incised wound inch X muscle deep on the back of chest just below the left scapula.
2 Incised wound (1/4) inch X muscle deep at the mid point of right scapula.
INJURIES OF ABDUL WAHAB.
1. Abrasion on the left side of the nose.
2. Abrasion on the lip of the right shoulder.
3. Bruise on he left renal region.
INJURIES OF JAN MUHAMMAD.
1: Abrasion on the right side of the chest.
2. Redness on the right side of clavicle.
INJURIES OF MUHAMMAD NAEEM.
1. Redness in the epigastria region, which slightly tender on touching.
2. Bruise on the back of the scapula.
(v) P.W.6 Muhammad Qadir Qanoon-go deposed that Mulazim Hussain, Naib Tehsildar carried out the investigation in the case under Ordinance-II of 1968 who expired about 5/6 years back. He identified his signatures on the site plan Ex.P/5-A and challan Ex.P/5-B. He also produced FIR lodged by Akhoonzada Abdul Baqi as Ex.P/5-C.
3. At the end of prosecution evidence appellant was examined under Section 342 Cr.P.C wherein he denied all the allegations. He also got recorded his statement under Section 340 (2) Cr.P.C and produced D.W.I Abdul Baqi, D.W.2 Abdul Khaliq and D.W.3 Abdul Karim in his defence. On conclusion of trial learned Sessions Judge found the appellant guilty under Section 302 (c) P.P.C and 324 P.P.C and sentenced him as mentioned above. Muhammad Naeem brother of deceased has also filed Criminal Revision Petition No, 98/2005 for .enhancement of sentence.
4. We have heard the learned counsel for appellant as well as learned counsel for complainant and State counsel. Learned Counsel for appellant vehemently contended that according to prosecution version as set-up during investigation, 8-10 persons attacked upon the complainant party and no specific role was attributed to any one of them but during trial the prosecution witnesses made dishonest improvements in order to put whole blame upon appellant, as such; their statements were liable to be ruled out of consideration. He next argued that the statements of prosecution witnesses were recorded with up-explained delay during investigation, as such; their evidence was worth of no consideration. He vehemently contended that the other accused persons who were sailing in the same boat were sentenced only to one year imprisonment and rule of consistency demands that appellant should be dealt with accordingly. in alternate he contended that Section 302 (c) P.P.C was not attracted having been added in Pakistan Penal Code on 05.09.1990 after the date of occurrence, as such; if any case was made out the appellant was liable to be punished under old Section of 304 P.P.C.
On the other hand learned counsel for complainant as well as learned State Counsel vehemently contended that the prosecution has proved guilt of appellant beyond any shadow of doubt and he was rightly found guilty. Learned Counsel for complainant also argued that punishment provided under the law was up to 25 years and there was no mitigating circumstance to awarded 14 years imprisonment to appellant and same was liable to be enhanced.
5. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment as well as evidence on record with their assistance. It is case of prosecution that appellant not only caused death of deceased Muhammad Naseem but also injured the witnesses. So far unnatural death of Muhammad Naseem is concerned, the same has not been disputed by the defence, which is even otherwise proved through the statement of P.W.4 Dr. Sheikh Akhtar Muhammad, however, it is worth to note that the deceased sustained only one injury. The prosecution alleged that the appellant was responsible for causing death of Muhammad Naseem as well as injuries to P.W. Said Khan, Muhammad Naeem and Abdul Hanan.
All the prosecution witnesses though in their Court deposition have specifically implicated the appellant for causing death of Muhammad Naseem and injuries to them but their such Court deposition was a material improvement in their statements recorded under Section 161 Cr.P.C. P.W.1 in his statement under Section 161 Cr.P.C has alleged that he was attacked upon by Fateh Khan and he also saw Fateh Khan to have inflicted Knife blows to Muhammad Naseem. He also stated in his statement under Section 161 Cr.P.C that 'Muhammad Din and Abdul Sattar also inflicted Knife blows to Muhammad Naseem. Similarly Muhammad Naeem in his statement recorded under Section 161 Cr.P.C had not specifically nominated appellant Juma Khan for inflicting Knife blows to Muhammad Naseem but stated that Fateh Khan, Juma Khan, Adam Khan, Moula Dad and Abdul Sattar who were armed with Knife were beating his father and brother. Likewise P.W.3 also improved his previous version by putting whole blame upon appellant for causing injuries to deceased Naseem, therefore, dishonest improvements made by them in their Court deposition in order to put whole responsibility upon the appellant for causing death of deceased Naseem and injuries to witnesses has made their statements worthy of no reliance and could not be believed. In this regard we are fortified by the judgment reported in 1993 SCM R 550 wherein it was observed as under:-- "Secondly, statements of the witnesses in the Court in which improvements are made to strengthen the case of the prosecution are not worthy of reliance. It is held in the case of Amir Zaman v. Mehboob and others (1985 SCM R 685) that testimony of witnesses containing material improvements are not believable. Reference can also be made to the cases of Haji Bakhsh v. The State (PLD 1963 Kar. 805), Qaim Din and others v. The State (1971 P.Cr.LJ 229) and Fazla and another v. The State (PLD 1960 Lah. 373).
It may further be observed that there is no other independent evidence to inculpate the appellant in the commission of offence or prove charge against him beyond any shadow of doubt, therefore, the conviction cannot be legally sustained merely because he failed to prove plea of alibi as initial burden to prove guilt of accused is always on prosecution.
In view of what has been discussed above, in our considered view prosecution has failed to prove the charge against appellant beyond reasonable doubt, as such; we are inclined to set aside the judgment dated 27.09.2005 rendered by Sessions Judge, Loralai and acquit the appellant of the charge. He be set at liberty forthwith, if not required in any other case. Consequently; revision petition filed by brother of deceased is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.