' SHEIKH HAKIM ALI, J.--- Through this single judgment, we are proceeding to decide the following cases:---
(i) Criminal Appeal No,824 of 2006 arising out of Criminal Petition No,397-L of 2005 (Muhammad Azam v. The State) appeal against conviction.
(ii) Criminal Miscellaneous Application No,400-L of 2006 in Criminal Appeal No,824 of 2006 Muhammad Azam v. The State for compromise and
(iii) Criminal Appeal No,825 of 2006 out of Criminal Petition No,410-L of 2005 (Javed Iqbal v. The State and others) against acquittal.
' Because all these cases have sprung out from one F.I.R. No,194 of 1999, registered on 8-4-1999, at about 4-10 p.m. Upon the statement of Seth Javed Iqbal, P.W.1, the informant under sections 302/324/34, P.P.C. With Police Station, Alif Division, District Gujrat.
2. Appeal at serial No,1 has been filed by Muhammad Azam singly, who along with Muhammad Zubair, Muhammad Yousuf and Muhammad Afzal, the later 3 acquitted accused, were convicted and awarded the following sentences by the Additional Sessions Judge. On 14-3-2000:--- "(A) All the accused are, convicted under section 302(b)/34, P.P.C. For the Qatl-i-Amd of Mst. Tanvir Begum and sentenced to death penalty each. An amount of Rs,100,000 as compensation shall be paid to the legal heirs of the deceased by each accused and in default of payment of same, they shall further undergo six months' S.I. Each.
(B) All the accused are convicted under section 302(b)/34, P.P.C. For the Qatl-i-Amd of Niamat Ullah and sentenced to death penalty each. An amount of Rs,100,000 as compensation under section 544-A, Cr.P.C. Shall be paid to the legal heirs of the deceased by each accused and in default of payment of compensation, they shall further undergo six months' S.I. Each.
(C) All the accused are convicted under section 302(b)/34, P.P.C. For the Qatl-i-Amd of Amanat Ullah and sentenced to death penalty each. An amount of Rs,100,000 as compensation under section 544-A, Cr.P.C. Shall be paid to the legal heirs of the deceased by each accused and in default of payment of compensation, they shall further undergo six months' S.I. Each.
(D) All the accused are convicted under section 324/34, P.P.C. For attempting to commit Qatl-i- Amd of Javed Iqbal, complainant and sentenced to ten years' R.I. Each and a fine of Rs,25,000. In default of payment of fine, they shall further undergo six months' S.I. Each.
(E) All the accused are convicted under section 337-F(ii)/34, P.P.C. For causing the injury Ghayr Jaifa Badiah to Javed Iqbal, complainant and sentenced to Rs,50,000 as Daman each and two years' R.I. As Tazir each. In default of payment of Daman, they shall further undergo two months' S.I.
Each."
3. Against the above noted judgment, Criminal Appeal No,345 of 2000 and Criminal Appeal No,346 of 2000 were filed by Muhammad Azam, Muhammad Zubair, Muhammad Yousuf and Muhammad Afzal respectively in the Lahore High Court, Lahore while Murder Reference No,312 of 2000 was submitted by the learned Additional Sessions Judge for confirmation of the death sentence of the above noted appellants. On 28-6-2005, the learned High Court decided as under:--
(I) Criminal Appeal No,345 of 2000, filed by Muhammad Azam was dismissed, the conviction and the sentences recorded against him by the learned trial Court was maintained in toto.
(II) Criminal Appeal No,346 of 2000 filed by Muhammad Zubair, Muhammad Yousuf and Muhammad Afzal, were accepted and they were acquitted of the charge.
4. Aggrieved from the judgment of conviction, Muhammad Azam filed the above noted Criminal Appeal No,824 of 2006, while Javed Iqbal, P. W.1, the informant, has filed Criminal Appeal No,825 of 2006 against the acquittal of three above noted acquitted accused, namely, Muhammad Zubair, Muhammad Yousuf and Muhammad Afzal.
' During the pendency of the Criminal Appeal No,824 of 2006, filed by Muhammad Azam an application for acquittal of Muhammad Azam in respect of the murder of Niamat Ullah and Amanat Ullah deceased, was submitted before this Court in which, it was prayed that Muhammad Azam might be acquitted of the charges of murder of the above noted deceased persons, as the legal heirs of both the above mentioned deceased had effected a compromise with Muhammad Azam, appellant. The report was called for from the learned Sessions Judge, Gujrat, which was duly submitted, after verifying the genuineness and voluntariness of the compromise entered into between the legal heirs of Niamat Ullah and Amanat Ullah deceased and the present appellant, namely, Muhammad Azam. According to the report dated 20-12-2006 of the learned Sessions Judge, Gujrat, all the major legal heirs of both the above noted deceased have entered into compromise with Muhammad Azam, appellant, while to the extent of minor legal heirs of both the deceased, shares of Diyat to their extent were deposited with Habib Bank Limited, Gujrat Branch.
Mst. Razia Begum, the mother of both these deceased had at that time refused to accept service.
But we have now been apprised of the death of Mst. Razia Begum, of the aforesaid lady which has occurred on 17-2-2007. Copy of certificate of Mst. Razia Begum issued by Secretary Union Council No,55 of Gujrat, has also been produced in this Court.
5. Accordingly, we accept the compromise as genuine and having been entered into by the free consent of legal heirs of Niamat Ullah and Amanat Ullah, deceased, keeping in view of the report dated 20-12-2006 of the learned Sessions Judge, Gujrat, in which the interest of minors have also been safeguarded. Consequently, we acquit Muhammad Azarn, the appellant, from the charge of murder of Niamat Ullah and Amanat Ullah deceased on the basis of above noted compromise.
6. Before bringing discussion of the case on the factual and legal aspect, we consider it necessary to reproduce the story of the prosecution as narrated by Seth Javed Iqbal in F.I.R. No,194 of 1999, dated 8-4-1999 as was transformed into English version by the learned Division Bench of the Lahore High Court, Lahore:-- "On 8-4-1999 at 2-00 p.m. When Seth Javed Iqbal, the complainant was sitting in the room of his house along with his wife Mst. Tanvir Begum, Niamat Ullah and Amanat Ullah, brothers in law of the complainant were talking about the marriage of children when Ali Abid son of the complainant went in the adjacent room and in the meanwhile, Muhammad Azam, Muhammad Zubair, both real brothers, Muhammad Yousuf and Muhammad Afzal, both brothers in law armed with .30 bore pistol, entered in the room. Sooner, the above said accused entered in the room, Muhammad Zubair fired a shot which hit on the left flank of Amanat Ullah, the second shot fired by Muhammad Azam landed on the left shoulder of Niamat Ullah and the third short fired by Muhammad Yousuf hit into abdomen of Mst. Tanvir Begum while the fourth shot fired by Muhammad Afzal landed into abdomen of the complainant. All the injured fell down and the accused also made firing upon them which hit on different parts of their bodies. On hearing the report of firing, the P.Ws attracted to the place of occurrence and the accused while firing in the air, fled away. The injured Amanat Ullah, Niamat Ullah and Mst. Tanvir Begum while in their way to hospital, succumbed to their injuries.
' The Motive alleged was dispute of property and condition of account."
7. Opening the arguments of the case,, Sardar Muhammad Ishaq Khan, learned Senior Advocate, Supreme Court, appearing on behalf of Seth Javed Iqbal, informant, submits that the learned Division Bench of the Lahore High Court, Lahore has acquitted the accused Muhammad Zubair, Muhammad Yousuf and Muhammad Afzal by deducing wrong conclusions, inferences and presumptions, upon inadmissible evidence, without considering the following material points, which if considered would have resulted in the upholding of death sentence of the above noted three accused. The formulated points according to the learned counsel are as under:--
(i) F.I.R. Was not belated. It was promptly lodged. The time of 6-00 p.m. Considered by the learned Division Bench, to be the time of reporting was inadmissible evidence, which could not be relied upon by the learned Division Bench of the Lahore High Court.
(ii) The acquittal on the basis of opinion of the police in three successive investigations in. Respect of innocence of three accused could not made basis for acquittal, as it was irrelevant and inadmissible evidence in the eye of law. Refers to Farman Ali and 2 others v The State 92 SCMR 2055.
(iv) Plea of alibi was never raised by the aforementioned accused in their statement recorded under section 342 of the Cr.P.C.
(v) Motive and recoveries of empties were admitted facts.
(vi) Conduct of accused after the murder and his confessional statement recorded under section 342 of the Cr.P.C. Was sufficient to convict these accused. The compromise was never entered on behalf of legal heirs of Mst. Tanvir Begum, therefore, all these three accused could not be acquitted.
8. Learned counsel appearing on behalf of Muhammad Azam, submits that learned Division Bench of the Lahore High Court, Lahore has disbelieved the story and evidence of the prosecution, but has maintained the sentence of Muhammad Azam, convict-appellant upon his confessional statement recorded under section 342 of the Cr.P.C. Learned counsel submits that the principle with regard to the confessional statement of accused is that it has to be accepted or rejected in toto and its exculpatory portions cannot be discarded while proceeding to rely upon the confessional statement for decision of the case. This settled principle of law was not adopted and acted upon by the learned Division Bench of the Lahore High Court, Lahore, which was against the precedents judgments of this Court The State v. Muhammad Hanif and 5 others reported in 1992 SCM R 2047 and Faiz and another v. The State 1983 SCM R 76. Further submits that as the legal heirs of Niamat Ullah and Amanat Ullah deceased, have effected compromise with Muhammad Azam, appellant, so he is entitled acquittal for the murder of these accused, while the appellant Muhammad Azam having not caused any injury to Mst. Tanvir Begum, according to his confessional statement, he was liable to be acquitted by this Court also. The injuries attributed to Mst. Tanvir Begum were ascribed to Muhammad Yousuf accused, who was acquitted by both the learned Courts below.
9. Arguments from Mian Aftab Farrukh, learned counsel for respondents Nos.2-4, the acquitted accused are in the following forms:---
(a) In case of acquittal, the principle settled is that when two views are possible from the evidence produced by the prosecution, the view favourable to the accused has to be adopted and accepted. Learned Division Bench having acted upon this principle of law, it was not open to any exception.
(b) The, learned counsel for the informant-complainant has not been able to point out that the view taken by the learned Division Bench for ordering the acquittal was perverse, artificial, shocking, ridiculous, arbitrary, or without sustainable reason.
(c) Further submits that in case of acquittal double presumption of innocence arises in favour of acquitted accused which cannot be dislodged without proving the case in consonance with the above noted principles. As per learned counsel, the prosecution has not been able to prove that the principles above noted, have been violated in case of acquittal of the above mentioned accused. Learned counsel has produced a long list of cases also, which we shall enter it at its appropriate place.
10. Learned D.P.-G. Has supported the judgment of learned Division Bench of the Lahore High Court, Lahore.
11. All the learned counsels' lengthy discussion, arguments and the perusal of the record of the case, have brought us to conclude the case with the following reasons:---
(1) It is cardinal principle of criminal jurisprudence, which has been settled since decades by this apex Court of the country that when an accused is acquitted of the charge, he can be brought into barriers of jail when the findings of the learned Court acquitting the accused are proved to be perverse, arbitrary, whimsical, unreasonable, fake, concocted, artificial, ridiculous, shocking, based on misreading of material evidence, on inadmissible evidence, on a view not possible to gather from the evidence on the record, highly conjectural, or based on surmises unwarranted in law. It is also settled that an accused, who has been acquitted is credited with two advantages, one that is available to him of his innocence at the pre-trial stage and the other which is earned by him on the basis of the judgment of acquittal from a Court of Competent jurisdiction. The following authorities noted below, are worth-consideration in this regard:---
(1) Ahmad v. The Crown PLD 1951 FC 107, (2) Fateh Muhammad v. Bagoo and others PLD 1960 SC 286,
(3) Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan PLD 1964 SC 422, (4) Feroze Khan v. Captain Ghulam Nabi Khan and another PLD 1966 SC 424, (5)
Usman Khan and others v. The State PLD 1969 SC 293, (6) Noora and another v. The State PLD 1973 SC 469, (7) Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227, (8) Taj Muhammad v.
Muhammad Yusuf and 2 others PLD 1976 SC 234, (9) Farid v. Aslam and 4 others PLD 1977 SC 4, (10)
Ali Sher v. The State and 3 others PLD 1980 SC 317, (11) Mst. Habibunnisa alias Mst. Bivi v. Zafar Iqbal and another 1981 SCM R 95 , (12) Capt. Mahmood Jan v. Madad Khan and another 1981 SCM R 474 ,
(13) State through Advocate-General, N.-W.F.P. Peshawar v. Amir Nazar and others PLD 1981 SC 286,
(14) Nazir Ahmad v. Muhammad Din and others 1981 SCM R 415, (15) Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11, (16) Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCM R 477, (17) Khan v. Sajjad and 2 others 2004 SCM R 215, (18) Mst.
Moodan v. Saifullah and 2 others 2004 SCM R 923, (19) Qamar Zaman v. Waseem Iqbal and 5 others 2004 SCM R 1209, (20) Mst. Zahida Saleem v. Muhammad Naseem and others PLD 2006 SC 427, (21)
Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637, (22) Barkat Ali v. Muhammad Asif and others 2007 SCM R 1812.
(2) Therefore, keeping in view, these principles, we have examined the instant case and have not found any wrong having been committed by the learned Division Bench of the Lahore High Court, Lahore while delivering the judgment of acquittal in respect of these three acquitted accused respondents. We are in agreement with the view of innocence taken by the learned Division Bench on the basis of following summarized grounds:---
(a) F.I.R. Was belated as it was recorded after 6-00 p.m. This finding was rightly and correctly recorded because P.W.9, Dr. Tariq had admitted in his statement that general condition of Javed Iqbal was very serious who was profusely bleeding and for that he was operated upon by and another Doctor also. Therefore, this was a supportive legal evidence proving that informant was unconscious, who had recovered at about 6-00 p.m. After the operation.
(b) No independent witness from the locality was produced.
(c) The other witnesses, who were admittedly present at the time of alleged occurrence and whose names were given by the prosecution itself, namely, Muhammad Safdar, Khalid Mehmood and Muhammad Tufail, were given up, the inference arising from it would be that they were not supporting the case of prosecution.
(d) Whole prosecution case was raised upon the ocular testimony of informant and Ali Abid, P.W.2 his son. Both these witnesses cannot be termed as independent witnesses to convict the acquitted accused.
(e) Presence of Ali Abid has been proved on the record to be doubtful at the time of occurrence.
(f) Even, according to the prosecution story as narrated by Seth Javed Iqbal, informant, Ali Abid had gone to another room when the occurrence had taken place.
(g) What was the immediate cause for the commission of murder of these three deceased persons, particularly when these three accused persons had admittedly no animosity or against these deceased persons.
(h) Conduct of Ali Abid, immediately after the occurrence, of not informing the police and not taking the injured persons to the hospital, proves the absence of Ali Abid P.W.2 the son of informant and Mst. Tanvir Begum, and sister's son of the Niamat Ullah and Amanat Ullah, deceased.
(i) The opinion of police was not the sole ground for acquittal of accused. Many other grounds were also noted in the judgment for forming the view of acquittal.
10. From the above and other reasons, which are apparent from the D record, we are not inclined to upset the judgment of acquittal of these three accused.
11. As regards Muhammad Azam, as the legal heirs of Niamat Ullah and Amanat Ullah, deceased, have effected compromise, Muhammad Azam has therefore, been acquitted for the charge of murder of these two deceased. After the case of these two deceased persons, there remains the case of Mst. Tanvir Begum, the third deceased, to whom injuries were caused by Muhammad Yousuf, the acquitted accused, according to the prosecution story. As regards injury to Seth Javed Iqbal, the informant, it was attributed to Muhammad Afzal another acquitted accused by the prosecution. So, from this discussion, it is evident that Muhammad Azam accused had not caused murder of Mst. Tanvir Begum or injury to Seth Javed Iqbal, according to the case of the prosecution E itself. In these circumstances, the prosecution cannot claim the conviction and awarding of death sentence to Muhammad Azam on the basis of its own evidence. At the most, the prosecution can make prayer for the conviction of Muhammad Azam by invoking provision of section 34 of the P.P.C. But we have found from the record that only 2 entry wounds were found on the dead body of Mst. Tanvir Begum, which were attributed to Muhammad Yousuf acquitted accused, while injuries Nos.3 to 6 could not be explained by the lady doctor Kausar Perveen, P.W.3. Prosecution has not been able to explain these Injuries Nos.3 to 6 (consisting of 1 x 1 c.m. Each) as to what was the nature of these injuries, by whom and with what weapon, these injuries were caused? Whether these were entry or exit wounds, no explanation was forthcoming from the doctor, who was herself uncertain as to these injuries. No metallic foreign body was extracted from these injuries. The postmortem examination by the aforementioned lady doctor has not been found by us up to the mark, with a clear picture so as to attribute, link and connect it with Muhammad Azam, accused, who may be held responsible to cause these injuries of unknown nature. It is material to note that it is not the prosecution case that Mst. Tanvir Begum and Seth Javed Iqbal, were caused injuries by Muhammad Azam accused. The evidence of the prosecution having been disbelieved as regard to three F accused, so upon the same evidence of prosecution, Muhammad Azam accused cannot be convicted and punished with death sentence.
12. In the end, we are left with the confessional statement of Muhammad Azam recorded under sections 342 of Cr.P.C. Which has to be accepted or rejected as a whole. We have found that Muhammad Azam has exceeded in his right of self defence and has suppressed the real story with regard to injuries caused to Mst. Tanvir Begum. Not a single word was uttered by him as to how and by whom, she was injured although her presence, use of abusive, filthy language, misbehaving to him was admitted in his statement. From this concealment and keeping in view, the assertion of prosecution that indiscriminate firing was resorted to by the accused after the injured had fallen on the earth and the active participation in the occurrence by Muhammad Azam confessed by himself, which took the life of three deceased persons, while applying provision of vicarious liabilities, we convict him under section 302(c) read with section 34 of the P.P.C. And sentence him to suffer rigorous imprisonment for 14 years, with payment of compensation of Rs,100,000 to the legal heirs of Mst. Tanvir Begum or to suffer six months more of simple imprisonment, in case of non-payment of above noted compensation. The benefit of section 382-B of the Cr.P.C. However, is extended to the petitioner.
13. In nutshell, Criminal Appeal No,825 of 2006 (Javed Iqbal v. The State others) is dismissed while Criminal Miscellaneous Application No,400-L of 2006 (compromise) with regard to the murder of Niamat Allah and Amanat Ullah deceased is accepted and Muhammad Azam is acquitted of the charge of these two deceased persons on the basis of compromise. However, Criminal Appeal No,824 of 2006 is partly allowed, as noted above. The remaining sentences awarded to him by the learned trial Court as upheld by the learned High Court shall be suffered by Muhammad Azam.
However, these shall run concurrently with benefit of the provision of section 382-B of the Cr.P.C.