AMIN ALI and anothers vs THE STATE

' RAHMAT HUSSAIN JAFFERI, J.---The appellants Amin Ali, Asghar Ali, co-convict Shabbir Hussain, acquitted accused Muhammad Yasin and Khushi Muhammad were charged for offences punishable under sections 302/324/109/34, P.P.C. After the trial, the appellants were convicted and sentenced to death and imprisonment for life respectively, and other terms of imprisonment for causing the murder of deceased Fayyaz Khalid and injuries to the P.Ws. Bashir Ahmed, Tanveer Hussain and Mst. Maqbool Bibi, but the accused Muhammad Yasin and Khushi Muhammad, who were charged for conspiracy, were acquitted by the trial Court. The appellants and co-convict Shabbir Hussain filed appeal before Lahore High Court, Lahore, but the same was dismissed with modification in the sentence of the appellant Amin All from death to imprisonment for life under the impugned judgment dated 18-4-2008.

2. The prosecution alleged that the complainant Javed Iqbal (P.W.13) had electrician shop in one of the shops at his house, whereas the accused Khushi Muhammad had a shoe shop near the said shop. About six days prior to the incident, the co-convict Shabbir Hussain and acquitted accused Khushi Muhammad threw garbage in front of the shop of the complainant, therefore, the deceased complained about the said fact to the said accused persons. However, the accused felt insulted, hence they abused the deceased. Tanveer Hussain (P. W.14) and Bashir Ahmed (P.W.15) intervened into the matter, but the accused Khushi Muhammad threatened them of dire consequences by disclosing that his two sons namely, Amin Ali and Asghar Ali (the appellants) had come on leave from Army and they would teach them a lesson.

3. In the above background, on 30-12-2000, at about 10-15 a.m. The complainant along with his father Bashir Ahmad (P.W.15), brother Tanveer Ahmad (P.W.14) and the deceased Fayyaz Khalid were present on the shop when the appellant Amin Ali armed with a revolver, the appellant Asghar Ali armed with pistol and the co-convict Shabbir Hussain armed with a DAATER came there.

Thereafter, the appellant Amin Ali fired a shot from his revolver which hit Bashir Ahmad (P.W.15) on his left belly. The appellant Asghar Ali fired from his pistol which hit P.W.15 on his left buttock. The appellant Amin Ali fired second shot which hit on the right side of the chest of P.W.15. The deceased Fayyaz Khalid tried to rescue his father and came forward, but the appellant Amin Ali fired a shot from his pistol at the deceased, which hit on his right shoulder. The appellant Amin Ali fired another shot which hit on the back of right shoulder above the armpit of the deceased. The appellant Asghar Ali fired shot which hit on the back of the right shoulder of the deceased. In the meantime, P.W.14 Tanveer Hussain tried to save the deceased, on which the appellant Asghar Ali made a fire at him which hit on the right side of his chest. The appellant Amin Ali fired from his revolver which also hit the P.W.14 on the right side of his chest. The appellant Amin Ali fired another shot which hit on the right side of the chest of P.W.14. On the cries, the accused ran away. The incident was witnessed by Muhammad Naveed and Khadim Hussain (not examined). The complainant with the help of the P.Ws. Naveed and Khadim took the injured to his house and put them on cots lying in the courtyard. Whereas, Mst, Maqbool Bibi (P.W.16) mother of the complainant on seeing the injured persons started weeping and raised cries, but in the meantime the appellants and the co-convict Shabbir Hussain armed with their respective weapons came on the roof of the shop of the complainant and started firing at them. The complainant and the P.Ws. Saved themselves and ran towards veranda of the house, whereas Mst. Maqbool Bibi (P.W.16) started abusing the accused persons on which the co-convict Shabbir Hussain took the revolver from the appellant Amin Ali and fired at her which hit on her back. After causing injuries, the accused persons ran away. The second accident was also witnessed by the same P.Ws. Namely Naveed and Khadim. They went to injured and found the deceased Fayyaz Khalid had died. Then the complainant with the help of the P.Ws.

Took the deceased and injured to the hospital where they were admitted. It was further alleged that the incident took place on the abetment and conspiracy of Khushi Muhammad and Muhammad Yaseen, as the said conspiracy was heard by Abdul Ghafoor (P.W.11). The complainant leaving the injured in the hospital proceeded towards the Police Station Nishatabad, Faisalabad, but on the way he met with the investigation officer, who recorded his statement, which was sent to the police station for incorporation in 154, Cr.P.C. Book.

4. During the investigation, the police recovered two empty shells of .30 bore pistol from the place of the incident. After the arrest of the appellant Asghar Ali, a .30 bore pistol was recovered from him. Both the articles were sent to the expert for report which was in positive. After completing the investigation the police submitted challan against five accused persons in the Court, where they were tried. The appellant Asghar Ali in his statement recoded under section 342, Cr.P.C. Took the defence plea which reads as under-- "I am innocent. I have not injured anybody else. In fact, on the fateful day I was present at my shop situated near the shop of complainant party and I was selling sweets, candies and toys to the kids.

It was the third day of Eid-ul-Fitter. Naveed brother of the complainant was sitting in his shop and was enjoying by the shootings to the kids with his toy's pistol coming at my shop. I refrained him not to shoot the kids but he did not stop consequently I slapped him and he went to his home and Maqbool Bibi and Tanveer both armed with dandas. Bashir Ahmed armed with Datter and Fayyaz Khalid armed with pistol came over there and began to beat me. Fayyaz Khalid pull his pistol from his Nefa{{URDU TEXT}} ( .;; ) and tried to shoot me but I caught his hand and tried to snatch the pistol from him and due to this tussle both of us fell down on the earth and some fires were discharged which hit Maqbool Bibi, Tanveer and Bashir Ahmad. In the meantime, complainant rushed towards us and took the pistol from Fayyaz Khalid and tried to fire at me. I and Fayyaz Khalid were grappled and to save myself from the firing of complainant hide behind the Fayyaz Khalid and in the meantime fire discharged by the complainant hit Fayyaz Khalid instead of me.

Subsequently, the complainant with the collusion of police involved me as well as my other brothers in this false case and this is the reason that nobody from the vicinity has come forward to support the prosecution story."

5. Learned counsel for the appellants has argued that the prosecution has failed to prove the motive and conspiracy; that the conspiracy has been disbelieved by the trial Court, whereas the motive and conspiracy have also been disbelieved by the High Court; that the ocular testimony is in conflict with medical evidence; that the eyewitnesses have suppressed the real facts from the Court; that the High Court has also reservation about the ocular testimony but has relied upon the recovery of .30 bore pistol from the appellant Asghar Ali; that the recovery of such pistol has not been proved in accordance with law, as the statement of the investigation officer has not been supported or corroborated by the recovery witness (P.W.13); that the defence plea taken by the appellants is more plausible and fitting in the circumstances of the case than the story narrated by the P.Ws.; that the High Court has relied upon the said defence plea, but did not give full benefit to the appellants as the same has been relied upon for reducing the sentence; that the injuries on the persons of the injured witnesses simply prove that they were present at the place of incident, but there is no guarantee that they are truthful witnesses as they have suppressed the real facts and number of injuries caused to them and the deceased. He has relied upon Muhammad Hayat v.

State (1996 SCMR 1411), Said Ahmad v. Zammured Hussain (1981 SCMR 795), State v. Fateh Muhammad (1980 PCr.LJ 1245), Mehmood Ahmad v. State 1995 SCMR 127, State v. Muhammad Raja (PLD 2004 Peshawar 1) and Khuda Dad v. Ghulam Qasim 2000 MLD 1782. He has further argued that in a case, where defence plea is more probable than the benefit is to be given to the accused. He has relied upon Ashiq Hussain v. State (PLD 1994 SC 879).

6. Conversely, learned Deputy Prosecutor-General has admitted that the High Court has disbelieved the motive and conspiracy but has relied upon the ocular testimony of the witnesses, which is supported by the recovery of pistol that is sufficient to prove the prosecution case; that the High Court has given the benefit of defence plea to the appellant Amin Ali, therefore his sentence has been reduced and that the defence plea is not fitting in the circumstances of the case. He has supported the impugned judgment.

7. Having heard the learned counsel for the appellants, the learned Deputy Prosecutor-General and perusing the record, we find that this is a case of two versions. In such type of cases, this Court in the case of Ashiq Hussain supra laid down the rule in para 9 thereof, which reads as under:-- "Taking point No,(i), we find that the prosecution and the accused both parties admitted the occurrence but have given different versions. Onus lies on the prosecution to prove its case through reliable evidence, direct or circumstantial, and that too, beyond reasonable doubt. In the instant case, the High Court has discussed the defence plea/case/evidence first and after rejecting it, has considered and believed the prosecution case/evidence. We cannot help remarking that the High Court has approached the case in an entirely illegal and improper manner in so far as it has discussed the defence case first and then the prosecution case. After rejecting the defence case, the High Court has accepted the prosecution case. This is, to say the least, a topsy-turvy way of dealing with a criminal case and cannot be approved by this Court. For the guidance of all the Courts in the country we propose to lay down rules/principles for the appreciation of evidence in criminal cases of one version or of two versions. The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr. P.C., statement under section 340(2), Cr. P.C. And the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.0 is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only."

8. Keeping in view the above principle, we have examined the case and find that the incident has been admitted by the appellants so also the injuries on the persons of the injured and deceased.

The manner in which the incident took place has been disputed. Now it is to be seen as to in which manner the incident took place i,e, either in the manner as narrated by the P.Ws. Or by the appellants. On the rule laid down in the case of Ashiq Hussain (supra), the case of the prosecution is to be examined first in order to come to an independent finding about the reliability of eyewitnesses and then examine the defence in the light of such conclusion.

9. The prosecution story started from the motive and conspiracy. On the question of motive three witnesses viz. P.Ws. 13, 14 and 15 were examined, who gave the same details of the motive. The High Court considered this aspect of the case and rightly concluded that the motive alleged by the prosecution had not been established and gave cogent reasons for discarding the same. We do not find any reason to interfere with such findings.

10. As regards the conspiracy, the same was also discarded by the High Court and disbelieved by the trial Court by giving cogent reasons and we also affirm the said findings. Thus, the prosecution has failed to establish the motive and the conspiracy. To prove the motive, which is an important aspect of the case, the prosecution relied upon P.Ws. 13, 14 and 15. They are the same witnesses, who are injured and eyewitnesses of the case, but they are disbelieved on the question of motive.

' In such a situation, their evidence is required to be carefully examined. Reliance is placed on the case of Noor Muhammad v. State (2010 SCMR 97) and at page 101 thereof it has been observed as under:-- "Thus, the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1997 SCMR 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCMR 432) it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State (PLD 1976 SC 629) it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story."

11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close A range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased.

Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No,1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. Have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst.

Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution.

12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under:-- "It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself would not show that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-witnesses mentioned in the F.I.R. Namely, Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eyewitnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused."

' In the case of Mehmood Hayat supra at page 1417, it has been observed as under:-- "10. There is no cavil with the proposition laid down in the case of Zaab Din and another v. The State (PLD 1986 Peshawar 188) that merely because the P.Ws. Had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their testimony."

' In the case of Mehmood Ahmed supra, this Court at page 7 observed as under:-- "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness."

13. From the above evidence of the P.Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence. It is also important to note that two eye- witnesses Muhammad Naveed and Khadim Hussain were shown eye-witnesses in the F.I.R., but none of them have been examined to support the prosecution case.

14. As regards the second incident in the house of the complainant in which Mst. Maqbool Bibi (P.W.16) alleged to have received injuries has also been belied by the medical evidence. From all these facts, it is clear that the prosecution witnesses have suppressed the facts from the Court. The High Court has also so observed, therefore, did not believe the ocular testimony in its entirety.

15. As regards the recovery of pistol on the pointation of the appellant Asghar Ali, the prosecution examined the investigation officer, who deposed that the appellant was arrested from PNS Headquarter, Karachi, as he was serving in Pakistan Navy. He also stated that after two days the appellant took them to the Colony of National Engineering and Textile College, Faisalabad within the jurisdiction of Police Station Manawala and produced pistol and bullets from there, which were attested by Javed Iqbal and Naveed. Admittedly, Naveed was not examined, whereas Javed Iqbal (P.W.13) was examined, but he did not state a single word about the production of pistol by the appellant Asghar Ali before the police from the said place. Thus, we are left with the solitary statement of the investigation officer. It is not out of place to mention here that the recovery was made from the jurisdiction of another police station but the investigation officer did not go to the said police station or make any entry so as to show his presence at the relevant time within the jurisdiction of that police station or took some help from the said police station. This also creates doubt about the genuineness of the recovery. In these circumstances, no implicit reliance can be placed on such type of evidence.

16. After considering the material available on record, we find that the prosecution has miserably failed to prove the manner in which the incident took place. Therefore, following the rule laid down in the case of Ashiq Hussain supra we are left with the statement of the appellant Asghar Ali as mentioned hereinabove, which is to be taken into consideration to ascertain about the commission of offence. Considering the said statement, the High Court also observed that the said statement is fitting in the circumstances of the case. We also agree with the High Court on the said aspect of the case. From perusal of the said statement no offence appears to have been committed by any of the appellants and the accused, therefore, the above rule is fully applicable in the present case.

17. After considering the material available on record, we are of the considered view that the prosecution has failed to prove the case against the appellants beyond any reasonable doubt.

Therefore, they are entitled for the benefit of doubt, which is accordingly given to them. The Conviction and sentences awarded to them are set aside, therefore, they are acquitted of the charge. They should be released forthwith, if not required in any other custody case. Consequently, the appeal is allowed.

18. The benefit of this judgment is also given to the co-convict Shabbir Hussain who has not preferred appeal before this Court perhaps for the reason that his sentence was only 10 years and probably he had served out the said sentence.