1. AMIR HANI MUSLIM, J. -- By this single judgment, we intend to dispose of the above listed Criminal Appeal and two petitions, as common questions of facts and law are involved therein.
2. Criminal Appeal No, 38 of 2005 has been fried by the accused/appellants, against their conviction/sentence awarded to them by the learned Division Bench of the High Court by means of the impugned judgment; Criminal Petition No, 54 of 2005 has been filed by Intisar Ahmed petitioner, challenging dismissal of Crl. Misc. App. No, 1564-M of 1998, filed by him against acquittal order dated 03.08.1998 passed by the Triaf Court; whereas Criminal Petition No, 64-L of 2005 has been filed by petitioner Haji Allah Bakhsh against acquittal order of seven accused persons by the High Court passed in Cr. Appeal No, 856 of 1998.
3. CRIMINAL APPEAL No, 38 OF 2005. -- F.I.R, in this case was made by Haji Allah Bakhsh (PW-6) on 20.05.1994 in respect of murder of his son Muhammad Akram. In the F.I.R, he charged nine persons including the two appellants namely Qamar-uz-Zaman and Sarfraz @ Kakkoo. According to the contents of the F.I.R., the complainant is an agriculturist but his son Muhammad Akram (deceased) had installed power looms factory in the village. On the day of occurrence at about 6:00 p.m,, the complainant along with his deceased son left the looms factory for their house, when they were confronted by nine accused persons named in the F.I.R, including the appellants; out of them, Intisar Ahmed and Badar accused raised lalkara that-Muhammad Akram will not be spared today, followed by fire shot made by appellant-Qamar-uz- Zaman with his rifle, which hit the deceased on his left cheek; further followed by another fire shot made by @ Kakkcoo, hitting the deceased on back of his head.
2. It was stated in the F.I.R, that besides the complainant, crime was witnessed by Talib Hussain (PW- 7) and Noor Muhammad (abandoned PW)
4. Motive for the crime was that the deceased constructed a small bridge over the water channel in front of his looms factory, which was removed by the accused-party, over which the deceased and the appellant Qamar-uz- Zaman etc. had earlier quarreled; however, later on with the permission of Canal Department, again the bridge was constructed, which caused annoyance to Qamar-uz- Zaman and others and it was, therefore, that even on the day of occurrence, in the morning, there was a quarrel between them.
5. It appears that the complainant was not satisfied with the investigation because despite nomination of accused with their specific role in the F.I.R., they were not attested by the Investigation Agency; he, therefore, filed a criminal complaint in the Court of Illaqa Magistrate, who referred the case from his Court to the Court of learned Additional Sessions Judge, Faisalabad. Trial of the complaint case ultimately resulted in acquittal judgment dated 03.08.1998.
6. Acquittal judgment passed by the learned Trial Court was challenged before the learned High Court by the complainant through Criminal Appeal No, 856 of 1998, which was ultimately' allowed on 11.01.2005 as against Qamar-uz- Zaman and Sarfraz @ Kakku; whereas in respect of other seven acquitted accused, the same was dismissed at preliminary stage on 27.03.2000. , The learned High Court convicted the two appellants under Section 302(b)/34, PPC and sentenced them to life imprisonment each, with direction to pay compensation to the tune of Rs, 1,00,000/- (one lac) each, to be paid for the legal heirs of the deceased and in default whereof to undergo SI for six months.
7. Learned counsel appearing for the appellants has argued that the case is based on testimony of two eyewitnesses; out of whom Haji Allah Bakhsh is father of the deceased and has got hostile relations with the appellants because of dispute between them on construction of small bridge over the water channel and that such grudge was going on for the last more than a year.
3. According to him, statement of the complainant Haji Allah Bakhsh shall be out of consideration not only because he is father of the deceased and hostile towards the appellant but also because of his unnatural conduct i,e, he instead of taking the dead-body of the deceased to the Police Station for making the report, had proceeding to the hospital where report was made. He submits that no effort whatsoever was made by the complainant to inform the police about the occurrence.
4. ' It is also argued that the statement of the complainant Haji Allah Bakhsh is contradicted by the medical evidence because according to the P.I.R, made by the complainant, second shot'fired by appellant Sarfraz @ Kakkoo, hit the deceased on the back of his head whereas according to the medical evidence, such injury was on the scalp of the r deceased; as such there is contradiction qua the injuries.
5. ' He has next argued that various Police Officers, who conducted investigation in the matter, have opined that the appellants.and others, acquitted co-accused were innocent and had never possessed any fire-arm; according to him, no , weapon has been recovered from either of the appellants to connect them with the commission of crime.
6. ' He has further argued that, in view of chaljan filed by the Police against the complainant party, for which a .* separate trial was held, the death of Muhammad Akram deceased was caused not by the appellants but it was during the course of cross firing that too, when deceased was hit with the fire shot of his own companion.
7. ' Challenging the presence of Talib Hussain (PW-7), it is argued by the learned counsel that he is a chance witness because as per his own admission, he was not to use this p route for going to his own but had introduced his visit to the house of Noor Ahmed to take him along for condolence to the house of one Dogar. ' lt is further argued that Talib Hussain (PW-7) though apparently a disinterested witness but it has been admitted by him that in the cross-case, seven accused under trial are closely related to him; and in order to take revenge of prosecution against his close relatives, he has sided with the present complainant.
8. ' The learned counsel has argued that Talib Hussain (PW-7) admitted that the Police came to the hospital in his presence, where F.I.R, was recorded and that he had told the police that he was eye- witness of the crime but still his statement was not recorded then and there; therefore, according to the learned counsel, it would mean that though he was present in the hospital but was not ready to give statement in favour of the prosecution and was later on tutored to give statement for the reason that his own relatives were made accused in the cross case.
9. ' It is also argued that Noor Ahmed, who is named in the F.I.R., should have been examined at the trial, if not as an eye-witness but at least to support the visit of Talib ' Hussain to his house so as to justify the presence of Talib Hussain on the route other then the route which he generally undertakes.
10. ' Learned counsel has consistently emphasized on the factum that there is cross version, therefore, benefit of the same is available to the two appellants.
11. ' Finally it is argued by the learned counsel that the two appellants were acquitted by the Trial Court arid the learned Division Bench of the High Court has misread the evidence and misapplied the principle of appreciation of evidence as held by this Court i,e, even if different view of evidence is possible, the preference shall be given to the view, which favours acquittal and not to the one which is inclining towards conviction.
8. In support of his submission that mere disinterestedness of a witness is not sufficient to believe his testimony, but the same should be corroborated by the independent evidence, reliance has beep placed \by him on the case of Muhammad Iqbal v. State (1984 SCM R 930) and Muhammad Arshad v. State (1995 SC M R 1639).
12. ' Not to believe the chance witness, the Teamed counsel has referred to Iftikhar Hussain v. State [NLR 2005 Cr. Cases (SC) 469] and Allah Ditta v. State (1999 YLR 1478).
13. ' Regarding contradiction between medical evidence and ocular testimony, he relied upon the case of Faryad Ali v.. State (2008 SCM R 1086), Ghulam Qadir v. State (2008 SCM R 1221) and Muhammad Idrees v. State (2008 SCMR 1547).
9. Leamed counsel appearing for the complainant has argued that the principle of falsus in uno, falsus in omnibus is no longer applicable as held by this Court in various judgments but the principle of sifting grains from the chaff has to be applied as a rule of conscience.
14. ' He submits that seven co-accused of the appellants were acquitted and to that extent case of the complainant has not been believed, but to the extent of accusation against the two appellants, there is sufficient ocular evidence furnished by disinterested witnesses, corroborated by the medical evidence and supported by the motive.
15. ' According to the learned counsel cross-version was set up after the delay of two years of the occurrence and that too when the police of its own filed yet another challan on 07.07.1996 whereas the occurrence took place on 20.05.1994.
16. ' He further submits that the presence of Talib Hossain (PW-7) stands proved on record because even in the F.1.R. the police recorded at the end that the complaint was present along with Talib Hussain-PW in the hospital and the same person has identified the dead-body of the deceased in the mortuary at the time of post-mortem examination as' well as before the police when the Inquest report was prepared.
17. ' He has also argued that the very relatlon witness with the deceased, in absence of any ehrnlty Against the accused, could not diminish its evidentiary ValuC'if statement of such witness is intrinsically true; 10.Learned Additional Prosecutor General Punjab" has argued that he supports the impugned, judgment delivered by the leamed Division Bench of the. High Court and adopt the submissions made by the learned counsel appearing for the complainant as he is also of the view that the testimonies of the two eye-witnesses, who have no enmity against the appellants, are not only corroborating each other but are further supported by the medical evidence.
18. 11.We have heard the learned counsel for the parties and with their able assistance have carefully scrutinized the evidence available on record, the impugned judgment of the High Court as well as the judgment passed by the learned Trial Court.
19. 12.ln this case the prosecution has relied upon the testimony of Haji Allah Bakhsh and Talib Hussain; they both have furnished ocular account of murder of deceased Muhammad Akram; both are consistent in the narrations of facts by stating that it was appellant-Qamar-uz-Zaman, who made first fire shot with his rifle, hitting the deceased on the left cheek whereas fire shot made by Sarfraz @ Kakkoo landed on the back of the deceased; they both support each other inasmuch that after receipt of fire-arm injuries, the deceased became seriously wounded and was shifted to the hospital for treatment but died en route; the presence of Talib Hussain at the time of making report is admitted by the Investigation Officer, as it is evident from the note at the bottom of the F.I.R., where he states that when he reached the hospital on having received the information about the occurrence, Haji Allah Bakhsh complainant in the company of Talib Hussain appeared before him and got recorded the FIR. Similarly, we find his name mentioned against the column of identification in the post-mortem report (Exb.PW- 4/A) and inquest report (Exh.CC).
20. 13.Learned counsel appearing for the appellants has challenged the presence of the Talib Hussain mainly on the ground that he is a chance witness; we agree with the learned counsel but to the extent that his presence was not in the company of the deceased or the complainant but he was present on the spot alongwith Noor Muhammad (abandoned PW) as two of them wanted to go for the condolence to the house of one Dogar.
21. A chance witness cannot be disbelieved because he happened to be present per chance unless defence can show that he has got either some interest in the deceased or complainant or such chance witness is hostile or inimical towards the accused, which could prompt him for installing himself as false eye-witness.
22. 14.The submission of the defence that Talib Hussain-PW has. got his own interest against the accused- appellants could not be believed because some of his close relatives are made accused in the cross-version and the said version was introduced much later. At the time of recording of the F.I.R., identification of the dead-body before the Police and before the Doctor, Talib Hussain-PW would not know that in future some of his relatives would be prosecuted in the cross-version. More- so, at the time when his statement was got recorded by the Police or when his name was given in the F.I.R, as an eye-witness, Talib Hussain could not preempt that subsequently some of his relatives might be charged.
23. ' Learned counsel has vigorously argued that if Talib Hussain was present in the hospital at the time of recording of F.I.R., he should have made his statement then and there. In this regard, it may be noted that it is dependent upon the Investigation Officers as at what time he would record the statement of a witness; but from record, it appears that he was examined by Police under Section 161, Cr.P.C, on the very day of occurrence because according to the statement of Muhammad Naseer, SI (CW-4), who has recorded the F.I.R, of the complainant and has prepared the inquest and injury reports, has stated that after the spot inspection and preparation of site plan, he has also examined the PWs.
24. 15.Qua the submission of the learned counsel for the appellants regarding contradiction in medical evidence and ocular version, we have carefully persuade bcjth these aspects of the matter and find that there is no contradiction between the ocular account and medical evidence because in the F.I.R., a fire shot made by Sarfraz Kakkoo hit the deceased on the back side of his head, which shot was fired at him when he was in the process of falling down. According to the post-mortem report, the said injury was found on scalp, on the back of the head. Thus, it supports the assertion made by the eye-witnesses.
25. 16.Haji Allah Bakhsh, the complainant is undoubtedly father of the deceased Muhammad Akram but he has got no personal grudge against the appellants to falsely charge them. There is no serious enmity between the parties except a dispute between the deceased and the accused side over the construction of small bridge on the water channel in front of power looms factory of the deceased.
26. 17.Exception was taken by the defence that had Haji Allah Bakhsh (complainant) present at the time of occurrence, he should have gone to the Police Station for making report or if the deceased died en route to the hospital, he should stop going towards the hospital but should have taken the dead-body of the deceased to the Police Station for making a report.
27. ' When an injured is carried and rushed to the hospital, his close relatives, and in the present case his father, would definitely try to take him to the hospital for emergent medical treatment; it is but natural, lt is also not known as to how much distance was left to the hospital when the injured was expired. Even otherwise, the relatives though knowing that injured has expired, would still be keen to take second opinion of the doctor, confirming the death; possibility cannot be overruled that on having reached the hospital with the dead-body for medico-legal aid, the concern police was informed by the hospital staff.
28. 18.In this case, apparently there was dishonest investigation; when the F.I.R, was made, investigation kept on changing hands; so much so, the accused were named in the F.I.R, for effective shots specifically but their arrest was deferred, lt was in these circumstances that the complainant was constrained to file criminal complaint before the Court of Judicial Magistrate.
29. ' The arrest of the two appellants was made only when investigation was entrusted to Muhammad Umar Farooq, DSP (CW-2), who on receipt of record and in light of earlier investigation ordered the arrest of the two appellants.
30. 19.v An argument was made by the learned counsel for the appellants that the High Court should not have interfered with acquittal order, on having taken a different view of the evidence but we believe that the findings recorded by the learned Trial Court were mainly based on the opinion of the police because the entire judgment of the Trial Court appears to be under influence of the opinion of the Investigation Agency; so much so, the Deputy District Attorney, appearing before the Trial Court, stated that he would not support the version. This state of affairs would clearly show that the learned Trial Court was not properly assisted, which lacunas also covered by the learned Division Bench of the High Court by means of impugned judgment.
31. 20.For the above-stated reasons, we do not find any merit in this appeal as such the same is dismissed accordingly and the impugned judgment dated 11.01.2005 passed by the learned Division Bench of the High Court is maintained.
32. 21.Criminal Petition No, 54 of 2005.-- This petition has been filed by Intisar Ahmad petitioner.
33. Before the High Court, his Cr. Misc. Application filed against acquittal of the respondents/cornplainant party was dismissed being hopelessly barred by time. Although an application for condonation of the delay was filed by the petitioner but no good ground was urged therein, explaining as to why it was filed beyond the period of limitation before the High Court, as such the learned High Court proceeded to dismiss his application being barred by time, to which no exception can be taken in the present proceedings. Therefore, this petition being devoid of merit is dismissed. Leave declined.
34. 22 CRIMINAL PETITION No, 64-L QF 2005. -- ' This petition has been filed by petitioner/complainant against acquittal of * seven accused/respondents other than respondents No, 8 and 9. lt is time-barred before us because before the Court when appeal against acquittal was filed against nine respondents/accused, bearing Criminal Appeal No, 856 of 1998, the same was admitted for hearing on 27.03.2000 only to the extent of respondent-Qamar-uz- Zaman and Sarfraz @ Kakkoo; meaning thereby that the same was dismissed regarding remaining seven respondents way back on 27.03.2000, which order was not challenged before us within time. As such this petition is dismissed being barred by time.