' MALIK SHAHZAD AHMAD KHAN, J.---Jafar, Ali Sher, Riaz, Ozair, Yousaf, Afzal and Safdar appellants along with three others were tried in case F.I.R. No,572 of 2005 dated 9-7-2005 offences under sections 302, 109, 148 and 149, P.P.C. Registered at Police Station Tandlianwala, District Faisalabad.
After conclusion of the trial, learned trial Court vide its judgment dated 15-4-2008 has convicted and sentenced the appellants as under:-- ' Jafar, Ali Sher, Riaz and Ozair, appellants.
' Convicted under sections 302(b), 149, P.P. C . Each for committing the murder of Shahid Iqbal, deceased and sentenced to death each with a direction to pay the compensation amount of Rs,1,00,000 (Rupees One Hundred Thousand only) each to the legal heirs of deceased as envisaged under section 544-A of Cr.P.C. And in default, thereof, to suffer simple imprisonment for six months S.I. Each. The compensation shall be recoverable as the arrears of land revenue.
' Yousaf and Afzal appellants.
' Convicted under sections 302(b), 149, P.P.C. Each for committing the murder of Shahid Iqbal, deceased and sentenced to imprisonment for life (R.I.) each with a direction to pay the compensation amount of Rs,1,00,000 (Rupees One Hundred Thousand only) each to the legal heirs of deceased as envisaged under section 544-A of Cr.P.C. And in default, thereof, to suffer simple imprisonment for six months' S.I. Each. The compensation shall be recoverable as arrears of land revenue.
' Safdar.
' Convicted under sections 302(b), 109, P.P.C. For committing the murder of Shahid Iqbal, deceased and sentenced to imprisonment for life (R.I.) with a direction to pay the compensation amount of Rs,50,000 (Rupees Fifty Thousand only) to the legal heirs of deceased as envisaged under section 544-A of Cr.P.C. And in default, thereof, to suffer simple imprisonment for six months' S.I.
' The learned trial Court, however, acquitted Zahoor, Muddai and Abbas, co-accused while giving the benefit of doubt to them.
2. Feeling aggrieved, the appellants have challenged their conviction and sentences through Criminal Appeal No, 419 of 2008, whereas, the learned trial Court has transmitted Murder Reference No,121 of 2008, for confirmation or otherwise of the death sentences of Jafar, Ali Sher, Riaz and Ozair convicts/appellants. We purpose to dispose of both these matters by this single judgment as both have arisen out of the same judgment dated 15-4-2008 passed by the learned Additional Sessions Judge, Tandlianwala, District Faisalabad.
3. Brief facts of the case as given by the complainant Ahmad Yar (P.W.5) in his written application Exh.PA on the basis of which formal F.I.R. Exh.PA/1 was chalked out are that on 5-7-2005 at about 3- 00 p.m. He (complainant) along with Muhammad Yaqoob (P.W.6) and Dost Muhammad (given up P.W.) was present at the 'dhari' of Muhammad Yaqoob (P.W.6). At that time Shahid Iqbal (deceased), son of the complainant, aged about 30 years was coming from the village towards the drwi' of Muhammad Yaqoob (P.W.6) and when he reached at killa No,15, suddenly Zahoor (since acquitted), Ali Sher (appellant), Jafar (appellant since dead), Yousaf (appellant), Riaz (appellant), Oozair (appellant), and. Afzal (appellant) armed with sotas came there from the charri crop cultivated in killa No,6 and attacked on Shahid Iqbal .(deceased) while raising lalkaras., They said that they would teach a lesson to Shahid Iqbal and Muhammad Yar for beating Ali Sher. Shahid Iqbal tried to run away but Ali Sher, Riaz, Jafar and Oozair (appellants) chased him and gave sota blows on his head who fell down. In that condition Yousaf, Afzal (appellants) and Zahoor accused (since, acquitted) gave sota blows which hit Shahid Iqbal on his right arm and back of Shahid Iqbal (deceased). Complainant along with P.Ws. Rushed towards Shahid Iqbal (deceased). All the accused fled away from the spot, while raising lalkaras that they had taken the revenge of beating to Ali Sher (appellant). Complainant and P.Ws. Took Shahid Iqbal (deceased) to civil Hospital, Tandlianwala where he was admitted. The condition of Shahid Iqbal became serious on 9-7-2005, so he was taken to Allied Hospital, Faisalabad where he succumbed to the injuries at about 4-00- p.m. It was further alleged that occurrence had been committed at the abetment of Muddai, Abbas accused (since acquitted) and Safdar (appellant). The complainant also stated that he remained busy in the medical treatment of Shahid Iqbal till 9-7-2005, hence, he could not inform the police earlier, about the occurrence.
' The motive behind the occurrence as set forth in the F.I.R. Exh.PA/1 was, that the accused persons had committed the murder of Shahid Iqbal (deceased) due to a minor reason.
4. The appellants Jafar. Yousaf, Ali Sher, Afzal, Ozair and Riaz were arrested by Shoukat Ali, SI, (P.W.8) and on 31-7-2005 all the above mentioned appellants led the police to Chak No,413/GB where `sotas' (P-1, P-2, P-3, P-4, P-5 and P-6) were recovered on the pointations of Ali Sher. Riaz Jafar, Ozair, Afzal, Yousaf (appellants), respectively, which were taken into possession vide memos Exh.PB, Exh.PC, Exh.PD, Exh PE, Exh.PF, Exh.PG, respectively. After completion of investigation, the challan was prepared and submitted before the learned ti ial Court. The learned trial Court, after observing legal formalities; as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants and their co-accused on 9-12-2005. To which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced nine witnesses, during the trial. Ahmad Yar, complainant (P.W.5) and Muhammad Yaqoob (P.W.6) are the witnesses of ocular account.
' Dr. Abdul Satar Randhawa (P.W.4) conducted post mortem examination on the dead body of Shahid [ghat (deceased), whereas Shoukat Ali. SI (P.W.8) is the Investigating Officer of this case.
Muhammad Hanif (P.W.2) is the witness of recovery of `sotas' (P-1 to P-6).
' Farooq Ahmad, SI (P.W.1), Basharat Ali, Patwari (P.W.3), Muhammad Iqbal 1931 (P.W.7) and Zulfiqar Ali, ASI (P.W.9) are the formal witnesses. The prosecution also produced documentary evidence in the shape of complaint filed by Ahmad Yar complainant Exh.PA, F.I.R. Exh.PA/1, memo of possession of recovery of `sota' (P-1) Exh.PB from the possession of Ali Sher (appellant), memo of possession of recovery of `sota' (P-2) Exh.PC from the possession of Riaz (appellant), memo of possession of recovery of 'sota' (P-3) Exh.PD from the possession of Jaffar (appellant), memo of possession of recovery of `sota' (P-4) Exh. PE from the possession of Ozair (appellant) memo of possession of recovery of 'sota' (P-5) Exh.PF from the possession of Afzal (appellant), memo of possession of recover of `sota' (P-6) Exh.PG from the possession of Yousaf (appellant), copy of scaled site plan of the place' of occurrence in duplicate Exh.PH and Exh.PH/1, post mortem report of Shahid Iqbal (deceased) Exh.PJ, pictorial diagrams Exh.PJ/1, injury statement Exh.PK, inquest report Exh.PL, memo of possession of last worn clothes of Shahid Iqbal deceased Exh.PM, site plan of place of occurrence without scale Exh.PN, site plan without scale of the place of recovery of 'sotas' Exh.PO, copy of site plan Mark A and closed its evidence.
6. The statements of the appellants and their co-accused (since acquitted) under section 342, Cr.P.C. Were recorded by the learned trial Court. They refuted the allegations levelled against them and professed their innocence. While answering to question "Why the prosecution witnesses deposed against you and why this case against you" the appellants replied as under:-- ' Afzal.
"The case is false and fabricated. Ahmad Yar, alleged complainant, Muhammad Yaqoob deposed falsely being inimical to me and my alleged co-accused and they are closely related with each other and as well as alleged deceased Shahid Iqbal. Complainant party prevailed upon police through Rah Nawaz, MPA. Saee Muhammad is complainant of the private complaint of cross version who filed a private complaint against Ahmad Yar, Muhammad Yarob, Dost Muhammad, Hanif Allah Ditta, Murad and one Muhammad Afzal son of Saee Mohammad and Muhammad Ashraf which is pending before learned Judi. Magistrate, Tandlianwala. The actual facts of the case are that on 5-7-2005 at about 3-00 p.m. 1 along with Muhammad Saee complainant of the private complaint, Muhammad Yousaf injured, Noor Muhammad and Muhammad Ashraf were sitting on the cots in front of my house on the road under the shadow of trees at square No, 20 and we at that time talked with each other. In the meanwhile Shahid lqbal alleged deceased was armed with hatchet, Dost Muhammad armed with hatchet, Muhammad Hanif armed with hatched, Murad armed with hatchet, Muhammad Afzal son of Saeed armed with pistol Muhammad Ashraf armed with gun 12 bore, Ahmad Yar alleged complainant armed with dang, Muhammad Yaqoob armed with dang, Allah Ditta armed with dang reached the place of occurrence and were raising lalkaras to teach a lesson for beating to Shahid lqbal alleged deceased and Waris son of Shahadat resident of Chak No, 41 8/GB for abusing and insulting of them. Muhammad Afzal armed with pistol Muhammad Ashraf armed with gun, they started firing at the spot and created terrorism and panic in the village and raised lalkaras, if someone came to near them and tried to save the lives of myself and the above said other persons otherwise they should be murdered as due to that reason complainant party of the private complaint became afraid and worried at that time. Shahid lqbal alleged del cased present blow a hatchet to Muhammad Yousaf which hit on his head. Shahid lqbal also blow hatchet to me which hit on my head, Dost Muhammad inflected hatchet to Muhammad Yousaf which hit on the right side of his head. Murad inflected hatchet blow to Muhammad Yousaf which hit his near left hand at forearm.
Muhammad Hanif inflected hatchet blow to me which hit me on my right cheek. Muhammad Yaqoob inflected dang to Muhammad Yousaf which hit on his back of chest. Allah Ditta inflected dang to you Muhammad Afzal which hit on my right arm. In the meantime, I and Muhammad Yousaf picked up sotas near road and inflected some injuries to Shahid Iqbal alleged deceased in the right of private self defence. If I and Muhammad Yousaf did not beat to Shahid Iqbal alleged deceased he and others murdered to myself and. Muhammad Yousaf. This occurrence was witnessed by Saee Muhammad complainant of private complaint, Noor Ahmad and Muhammad Ashraf resident of Chak No,417/GB. The above said eyewitnesses namely Saee Ahmad, Noor Muhammad and Muhammad Ashraf beseeched the accused of the complaint and saved our lives. After the occurrence, myself and Muhammad Yousaf in injured condition reached at civil hospital, Tandlianwala for getting MLCs and treatment where the accused party of private complaint also reached there. At that time, the alleged complainant party compromised with us.
Due to that reason we did not get our MLCs from the said hospital. We got our treatment from the private clinic. On 9-7-2005 Shahid Iqbal alleged injured had died. A false case under sections 302, 148, 149, 109, P.P.C. Had been registered against myself and my alleged co-accused with wrong contents stated in the F.I.R. No,572 dated 9-7-2005, P.S. Tandlianwala. Complainant party stated a wrong motive in this case. The actual fact of the motive was that 10/11 days before the present occurrence the motorcycle, of Safdar Ali my co-accused was stolen by Waris who returned the said motorcycle through punchait and confessed his crime in the punchait so case of stolen motorcycle was not registered against him because matter was patched up in the punchait.
Waris is a good friend of Shahid Iqbal deceased. On the day of occurrence at about 11-00 a.m.
Shahid Iqbal and the above said. Waris both were passing from our Bazar near our house, at that time Mohammad Yousaf, Jaffar, Ali Sher myself and Ozair Ahmad already were sitting there under the shadow of tree. We asked Shahid Iqbal deceased why he brought Waris on our village who had already stolen our motorcycle and why Shahid Iqbal and Waris deceased were passing from our bazaar. On the asking of the above said fact and a quarrel took place between us and Shahid Iqbal and Waris. We had beaten Shahid Iqbal and Waris and abused them at that time. Due to that grudge the above said persons of the complainant party of the case attacked us while armed with lethal weapons and injured myself and Yousaf. I and Muhammad Yousaf in the right of private-self defence, picked up sotas from the spot and injured Shahid Iqbal to save our lives Rab Nawaz Kharal, MPA who is relative of the complainant party of the case in connivance with the local police registered a false case against us. Police did not record our version correctly. I was medically examined on 10-7-2005. Muhammad Yousaf was also examined on the same day. We produced our MLCs before police and police did not give weight to our ML Cs. A false case was registered against myself and my alleged co-accused. Ahmad Yar and Muhammad Yaqoob gave a false statement before this honourable court. I am totally innocent. My father also filed a private complaint against the above said accused persons. They are facing the trial before learned trial Court. The complainant party of the murder was aggressor.
' Jafar, Yousaf, All Sher, Riaz, Ozair and Safdar.
"The case is false and fabricated. Ahmad Yar, Muhammad Yaqoob deposed falsely being inimical to me and my alleged co-accused and they are closely related with each other. The complainant party prevailed upon the police through Rab Nawaz, MPA registered a false case against myself. I heard the detailed statement of Muhammad Afzal alleged co-accused which is recorded in my presence. I rely upon the statement of Muhammad Afzal the alleged co-accused. I did not take part in the main occurrence.
' The appellants produced Muhammad Afzal (appellant) in their defence who made statement on oath as envisaged under section 340(2), Cr.P.C. Muhammad Afzal (appellant) in his statement recorded under section 340(2), Cr.P.C. Took this plea that on 5-7-2005 at 3-00 p.Ni. He, Muhammad Yousaf (appellant) and other members of the accused party namely Noor Muhammad, Muhammad Ashraf and Muhammad Saee were attacked upon by the complainant party. He further claimed that Shahid Iqbal (deceased) along with Dost Muhammad, Murad, Muhammad Hanif, Muhammad Yaqoob, Allah Ditta inflicted hatchet and 'dang' blows on his person, as well as, on the person of Muhammad Yousaf (appellant) and thereafter he (Muhammad Afzal appellant) and Muhammad Yousaf (appellant) picked up `sotas' and inflicted some `danda' blows on the person of Shahid Iqbal (deceased) while using their right of private defence. The appellants also produced documentary evidence in the shape of statement of Muhammad Yaqoob Exh.DA, MLR of Muhammad Afzal (appellant) Exh.DB, pictorial diagrams of injuries Exh.DB/1, MLR of Muhammad.
Yousaf appellant Exh.DC, pictorial diagram Exh.DC/1 statement under section 161, Cr.P.C. Of Muhammad Iqbal Exh.DD, copy of F.I.R. No,465 of 1988 Exh.DE, copy of private complaint under sections 324, 148 and 149 filed by Saee Muhammad Exh.DF and copy of Jamanbandi for the year 2003-04 Exh.DG.
7. The learned trial Court vide judgment dated 15-4-2008, found Jafar. Ali Sher; Riaz, Ozair, Yousaf, Afzal and Safdar appellants guilty, convicted and sentenced them as mentioned and detailed above.
8. Learned counsel for the appellants, in support of this appeal, contends that totally a false story was narrated in the F.I.R. Exh.PA/l; that there is un-explained delay of four days in reporting the matter to the police despite the fact that distance between the place of occurrence and police station was just 16 kilometers; that in the F.I.R. It was case of the complainant that he took Shahid Iqbal (deceased) in injured condition to Civil Hospital, Tandlianwala where he remained admitted and became serious and then he was taken to Allied Hospital, Faisalabad but there is no evidence on the record qua the treatment of Shahid Iqbal deceased, either in Allied Hospital, Faisalabad or at Civil Hospital, Tandlianwala; that two appellants namely Yousaf and Afzal appellants were also injured in this incident but the injuries of said appellants were suppressed in the F.I.R. And in the statements made by the prosecution witnesses before the learned trial Court; that the alleged recoveries of `sotas' are inconsequential, as none of the `sota' was stained with blood; that no specific motive was alleged in the F.I.R., however, the complainant stated that when the deceased was attacked it was stated by the appellants that they have come to teach a lesson to Shahid Iqbal (deceased) and Muhammad Yar for beating Ali Sher (appellant) and while appearing before the learned trial Court, the complainant has stated in his cross-examination that the altercation took place between Shahid Iqbal (deceased) and Ali Sher (appellant) in the morning time in front of the house of one Mattal and admittedly said Mattal has not been examined before the police or before the learned trial Court; that Muhammad Yaqoob (P.W.6) during his cross-examination stated that it was Ali Sher appellant who abused Shahid Iqbal (deceased) in the morning time prior to the occurrence and he further stated that Shahid Iqbal was a respectable person and they felt aggrieved due to the said abuses, therefore, the motive was with the complainant party to take revenge of the abuses given by Ali Sher (appellant); that the version of Afzal appellant recorded under sections 340(2), as well as, 342, Cr.P.C. And adopted by the other appellants is more probable and convincing which gets support from the evidence of the prosecution that it was Ali Sher appellant who abused Shahid Iqbal (deceased) and it was Shahid Iqbal (deceased) who had grudge in his mind, therefore, he (deceased) along with his other companions attacked on the accused party; that Muhammad Afzal and Muhammad Yousaf appellants were medically examined by the same Doctor who conducted the post mortem examination on the dead body of Shahid Iqbal (deceased) and their MLRs have also been brought on the record; that it was admitted by the Investigating Officer that houses of the appellants are close to the place of occurrence; that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt, thus, this appeal be accepted and the appellants may be acquitted from the charges.
9. Learned Deputy Prosecutor-General, for. The State, assisted by learned counsel for the complainant opposes this appeal on the grounds that the delay in lodging the F.I.R. Per se is no ground to discard the prosecution evidence and even otherwise the said delay has been plausibly explained in the F.I.R. Wherein it has been mentioned that the complainant was busy in medical treatment of Shahid Iqbal deceased; that there is no reason for the prosecution witnesses to falsely depose against the appellants; that the ocular account of the prosecution is fully supported by the medical evidence as the deceased in this case received seven injuries on his person, as per post mortem examination report of the deceased; that the prosecution case is also corroborated by the recoveries of `rotas' at the instance of Jafar, Yousaf, Ali Sher, Afzal, Ozair and Riaz (appellants); that specific plea was taken by the appellants but they have not been able to prove the same; that appellants have themselves admitted in their statements recorded under sections 340(2) and 342, Cr.P.C. That they committed the murder of Shahid Iqbal (deceased); that there is no mitigating circumstance in this case; that the sentences of death were rightly awarded to the appellants and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
10. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
11. Before proceeding further it would be relevant to mention here that on 10-1-2013 learned counsel for the appellants stated that one of the appellants namely Jafar has died in the Central Jail, Faisalabad. In this regard report was requisitioned from the Superintendent, Central Jail, Faisalabad, who vide his report bearing No,789 dated 23-1-2013 submitted that the condemned prisoner namely Jafar has died on 21-7-2012 at the District Headquarter Hospital, Faisalabad. He has also annexed the death certificate of Jafar (appellant) along with his report. Thus keeping in view the report and death certificate submitted by the Superintendent, Central Jail, Faisalabad, Murder Reference No,121 of 2008 stands abated to the extent of Jafar appellant.
12. Now coming to the merits of this case, it would not be IA out of place to mention here that it is a case of two versions, i.e, one put forth by the prosecution in the form of ocular account furnished by Ahmad Yar, complainant (P.W.5) and Muhammad Yaqoob (P.W.6), whereas, the other has been brought on the record through the statements of the appellants, recorded under section 342 of Cr.P.C. And suggestions put to the prosecution eye- witnesses during their cross-examination.
13. It is settled now by the Hon'ble Supreme Court of Pakistan in number of judgments that it is the prosecution which is required to prove its case against the accused persons beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not? In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court of Pakistan in the case reported as Ashiq Hussain v. The State (PLD 1994 SC 879), wherein, at page 883, the learned Apex Court of the country has been pleased to observe as under:-- "The proper and 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 eyewitnesses 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. C. 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. In case of counter versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing in the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of 'Amin Ali and another v. The State' (2011 SCM R 323), therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will, first, examine the case of the prosecution.
14. The occurrence in this case took place on 5-7-2005 at 3-00 p.m. Whereas the matter was reported to the police on 9-7-2005 at 6-20 p.m. And the formal F.I.R. (Exh.P-A/1) was registered on 9-7-2005 at 6-30 p.m. The distance between the place of occurrence and police station is 16 Kilometers. There is delay of 4 days in reporting the matter to the police. There is no plausible explanation for the above-mentioned gross and inordinate delay in reporting the incident to the police. It was simply stated in the F.I.R. Exh.PA/1, as well as, in the statement of Ahmad Yar complainant (P.W.5) recorded by the learned trial Court that Shahid Iqbal (deceased) in injured condition was first taken to the Tehsil Headquarter Hospital, Tandlianwala, thereafter he was taken to Allied Hospital, Faisalabad on 9-7-2005 where he was given medical treatment but he succumbed to the injuries over there. Thus, the reason for the above mentioned delay in reporting the matter to the police as given by the prosecution was, that Shahid Iqbal (deceased) was first taken to the Tehsil Headquarter Hospital, Tandlianwala and then he was referred to Allied Hospital, Faisalabad and as the complainant party remained busy in the medical treatment of Shahid Iqbal (deceased), therefore, the matter could not be earlier reported to the police but we have noted that no evidence regarding the admission of Shahid Iqbal (deceased) on 5-7-2005 at Tehsil Headquarter Hospital, Tandlianwala has been brought on the record. Similarly no evidence regarding the medical treatment of Shahid Iqbal (deceased) at Allied Hospital, Faisalabad has been produced by the prosecution, therefore, there is nothing on the record to justify the above- mentioned delay of more than four days in reporting the matter to the police. It is by now well- settled law that sanctity of truth cannot be attached to an F.I.R. Which has been lodged with inordinate and unplausible delay. The possibilities of concoction and deliberations are very much there in the case of a delayed F.I.R. The Hon'ble Supreme Court of Pakistan while discussing the issue of delay in lodging the F.I.R., in the case of "Akhtar Ali and others v. The State" (2008 SCM R 6) at page 12 has observed as under:-- "5. ...It is also an admitted fact that the F.I.R. Was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. The F.I.R. Was also not lodged at police station as mentioned above. 10/11 hours delay in lodging of F. I. R. Provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the F.I.R..."
' The above-mentioned view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of "Nazeer Ahmad v. Gehne Khan and others" (2011 SCM R 1473) wherein, the delay of seven hours in lodging the F.I.R. Was considered to be a ground which adversely reflected on the creditability of prosecution version. Similarly in the instant case, the delay of 4 days in lodging the F.I.R. Has raised serious questions about the truthfulness of the prosecution story.
15. We have noted that the complainant implicated as many as 10 accused persons in this case for the murder of Shahid Iqbal (deceased). The learned trial Court awarded death penalty to four appellants namely Ali Sher, Riaz, Jafar (since dead) and Ozair who were assigned a joint role of inflicting 'sota' blows on the head of Shahid lqbal (deceased), whereas, two appellants namely Muhammad Yousaf and Muhammad Afzal were awarded the punishment of imprisonment for life, as they were assigned a joint role of inflicting `rota' blows on the right arm and back of Shahid Iqbal (deceased). Safdar (appellant) has also been awarded the sentence of imprisonment for life by the learned trial Court with the allegation that he abetted his co-accused in the commission of offence. In order to prove its case against the appellants the ocular account of the prosecution was furnished by Ahmad Yar complainant (P.W.5) and Muhammad Yaqoob (P.W.6). As mentioned earlier the said eye witnesses did not report the matter to the police for four days and the explanation given by the said witnesses for the above mentioned delay has already been discarded by us in the preceding paragraph of this judgment. We have also noted that the above- mentioned eye-witnesses are not truthful witnesses because they suppressed the injuries sustained by Muhammad Yousaf appellant and Muhammad Afzal appellant in their statements before the police, as well as, in their statements before the learned trial Court. The prosecution's own witness namely Doctor Abdul Sattar Randhawa (P.W.4) who conducted the post-mortem examination on the dead body of Shahid Iqbal (deceased) has stated during his cross- examination that he medically examined Muhammad Afzal (appellant) on 10-7-2005 and found the following injuries on his person:--
(1) An incised wound 5 cm x .4 cm in the middle of anterior part of head wound five days old, not stitched. KUO for X-ray bone is exposed.
(2) An incised wound 4 cm x .2 cm on right cheek front of ear bone is not exposed. Bone is not stitched KUO for X-ray.
(3) A contused swelling 5 cm x .4 cm on right forearm advised x-ray.
' According to his opinion injuries on the person of Muhammad Afzal appellant were caused by sharp edged and blunt weapons and duration of the injuries was within five days. He has tendered in evidence MLR of Muhammad Afzal (appellant) as Exh.PB and his pictorial diagram Exh.PB/1.
' Doctor Abdul Sattar Randhawa (P.W.4) has further stated during his cross-examination that on 10- 7-2005 he also medically examined Muhammad Yousaf Appellant and found following injures on his person:--
(1) (Y) shaped incised wound 8 cm x cm, bone is exposed on top of head. Stitched wound opened and examined and re-stitched. ASD and KUO for x-ray.
(2) An incised wound 3 cm x 0.2 cm on left side of head, bone was exposed. The wound was examined after re-opening. The wound was stitched and KUO for x-ray.
(3) A swelling 3 cm x 5. Cm on back of right chest. KUO.
(4) An incised wound 4 cm x 0.3 cm on outer side of left forearm.
' According to his opinion injuries on the person of Muhammad Yousaf appellant were caused by sharp edged and blunt weapon and duration of the injuries was within five days. He has also tendered in evidence a certified copy of the MLR of Muhammad Yousaf (appellant) as Exh.DC and his pictorial diagram as Exh.DC/1. It is evident from the perusal of medical evidence furnished by Doctor Abdul Sattar Randhawa (P.W.4) that Muhammad Afzal (appellant) and Muhammad Yousaf (appellant) were also seriously injured during the occurrence. There were total three wounds on the person of Muhammad Afzal appellant, out of which two were incised wounds on the head and cheek of said appellant. Similarly out of 4 wounds on the body of Muhammad Yousaf appellant there were two incised wounds on the head of said appellant and the bone of his head under the said wounds was also exposed. The above mentioned prosecution witness namely Doctor Abdul Sattar Randhawa (P.W.4) was not declared hostile by the prosecution. So it was established that Muhammad Afzal and Muhammad Yousaf (appellants) were seriously injured in the occurrence but their injuries were suppressed by the prosecution eye-witnesses. As the injuries on the persons of Muhammad Afzal and Muhammad Yousaf (appellants) have been suppressed by the above mentioned eye-witnesses and as they remained mum for four days after the occurrence, therefore, their evidence is not worthy of reliance.
16. The prosecution has also produced the evidence of recovery of `sota' (P-1) from Ali Sher appellant, recovery of `sota' (P-2) from Riaz appellant, recovery of 'sow.' (P-3) from Jafar appellant (since died), recovery of `sota' (P-4) from Ozair appellant, recovery of `sota' (P-5) from Afzal appellant, recover of `sota' (P-6) from Yousaf appellant. We have noted that all the above mentioned 'rotas' (P-1 to P-6) were recovered on the same day i.e, 31-7-2005 from the same place i.e, taithak', of Ali Sher appellant. We have also noted that it was not mentioned in the recovery memos Exh.PB to Exh.PG of above mentioned `sotas' (P1 to P-6) that the said `sotas' were stained with blood. There is no report of Chemical Examiner or Serologist to show that the `sotas' (P-1 to P- 6) were stained with human blood. In view of the above, the evidence qua alleged recovery of `sotas' (P-1 to P-6) is of no avail to the prosecution.
17. Now coming to the motive part of the prosecution, the motive of the occurrence as set forth in the F.I.R. Exh.PA/1 was that accused persons committed the murder of Shahid Iqbal (deceased) due to a minor reason. Although it was also alleged in the F.I.R. Exh.PA/1 that the accused persons raised `lalkara' to teach a lesson to Shahid Iqbal (deceased) and Ahmad Yar (P.W.5) for beating to Ali Sher (appellant) but no reason, time or place of the said beating was mentioned in the F.I.R. The complainant Ahmad Yar (P.W.5) while making his statement before the learned trial Court did not state anything about the motive in his examination-in-chief, however, during his cross- examination he stated that prior to the occurrence an altercation took place between Shahid Iqbal (deceased) and Ali Sher (appellant) in the morning time at about 8-00/9-00 a.m. He did not state that Ali Sher (appellant) was beaten by Shahid Iqbal (deceased), as alleged by him in the F.I.R.
Exh.PA/1, rather he stated that Ali Sher (appellant) abused so many to Shahid Iqbal (deceased).
Similarly Muhammad Yaqoob (P.W.6) did not state anything about the motive part of the prosecution case in his examination-in-chief, however, during his cross-examination he stated that an altercation took place between Shahid Iqbal (deceased) and accused prior to the occurrence. Even this witness did not state that Ali Sher (appellant) was beaten by Shahid Iqbal (deceased) rather he stated that Ali Sher (appellant) abused Shah Iqbal (deceased). He further stated that Shahid Iqbal was a respectable person and they (complainant party) felt aggrieved that Ali Sher (appellant) had abused Shahid Iqbal (deceased).- The relevant statement of Muhammad Yaqoob (P.W.6) (at page 65 of the paper book) reads as under:-- "Ali Sher accused abused Shahid Iqbal deceased. Shahid Iqbal was a respectable person. We felt aggrieved and grudge that accused Ali Sher abused Shahid Iqbal."
' It is evident from the perusal of the above mentioned prosecution evidence that infact there was no motive with the appellants to launch an attack on the complainant party rather the complainant party and Shahid Iqbal (deceased) were aggrieved of the abuses given by Ali Sher (appellant) to Shahid Iqbal (deceased) as the complainant party considered Shahid Iqbal a respectable person and they felt aggrieved that Ali Sher appellant had abused him. We have also noted that the occurrence in this case took place in `killa' No,15 as mentioned by Ahmad Yar complainant in his examination-in-chief. Moreover, this fact is also established from the site plan of the place of occurrence Exh.PH. Ahmad Yar complainant (P.W.5) has admitted during his cross- examination that houses of accused persons are at a distance of about 35 karams (about 193 feet) from `killa' No,15. Similarly the Investigating Officer Shoukat Ali SI (P.W.8) has admitted during his cross-examination that houses of the accused persons were nearer to `killa' No, 15 and the houses of the complainant were far away from said `killa' (killa No, 15). The above mentioned evidence has established that the occurrence took place near the houses of the appellants.' This is suggestive of the fact that it was the complainant party who was aggrieved due to the abuses given by Ali Sher (appellant) to Shahid Iqbal (deceased) and in fact the motive was with the complainant to launch an attack on the accused persons. Thus, the prosecution in this case, failed to prove any motive against the appellants.
18. In the light of above discussion, we have come to this conclusion that the prosecution could not prove its case against the appellants beyond the shadow of doubt.
19. Now coming to the defence plea taken by the appellants and evidence produced by them in their defence, we have noted that Muhammad Afzal (appellant) took the following plea in his statement on oath recorded under section 340(2), Cr.P.C. Which was also relied upon by the other appellants in their statements recorded under section 342, Cr.P.C. The examination-in-chief of Muhammad Afzal appellant reads as under:-- 'Stated that on 5-7-2005 at about 3-00 p.m. I along with Muhammad Yousaf, Noor Muhammad, Muhammad Ashraf and Saee Muhammad were sitting in front of our house on the cots under the shadow of kikar trees, We were talking with each other about the motorcycle. Shahid Iqbal deceased armed with hatchet, Muhammad Hanif armed with hatchet, Dost Muhammad armed with hatchet, Murad armed with hatchet, Afzal armed with carbeen/pistol, Muhammad Ashraf armed with gun .12 bore, Muhammad Yaqoob armed with dang, Ahmad Yar armed with dang, Allah Ditto armed with dang came there. Ashraf and Afzal started firing. They raised lalkara that they would teach lesson for beating to Shahid Iqbal. Shahid Iqbal gave a hatchet blow on my head. Muhammad Hanif gave hatchet blow which hit on my right side of the face near the ear.
Allah Ditta gave dang blow on my right arm. Shahid Iqbal gave hatchet blow on the head of Yousaf. Dost Muhammad gave hatchet blow on left side of the head of Muhammad Yousaf.
Muhammad Murad gave hatchet blow on the left arm of Muhammad Yousaf Muhammad Yaqoob gave dang blow on the back of Muhammad Yousaf. We also picked up sotas and clangs and gave dangs and sotas blow on the person of Shahid Iqbal deceased in exercise of our self- defence. The occurrence was witnessed by Noor Muhammad, Ashraf and Saee Muhammad. If we did not give sota blows on the person of Shahid deceased, it was apprehension that they would murder us. We became injured and we were taken to hospital. The other respectable persons of the brothery managed compromise between us and Shahid lqbal, etc. Thereafter Shahid Iqbal, etc. Went away from the hospital and he was taken to some private doctor for treatment at canal road Tandlianwala. When we came to know that Shahid Iqbal had expired due to reaction of drip, we reached hospital. We got ourselves medically examined. On 9-7-2002 then said 10-7-2002 1 and Yousaf were medically examined. We took the MLCs to the police station and produced the same before the 1.0. But police had been making excuses and did not record our statements. The motive behind the occurrence that on 5-7-2005 at about 11-00 a.m. I along with Muhammad Yousaf, Jafar, Ali Sher and Ozair were sitting in front of our door. Shahid Iqbal along with Waris passed through the Waris had stolen motorcycle of Safdar. Regarding the theft of motorcycle and punchait was held about 3/4 days prior to the occurrence and motorcycle was returned through punchait including Abdul Haq Khatchi and Sullla son of Salabat. At that very relevant time, Yousaf said to Shahid Iqbal that why he came there along with Waris who was their thief. Due to that reason an altercation took place between Yousaf and Shahid Iqbal. Yousaf, Ali Sher, Oozair and I gave slaps to Shahid Iqbal accused. Due to that grudge Shahid Iqbal, etc. Attacked us while we were sitting in front of our house. Police did not register the case on asking of Rab Nawaz MPA who was reative of the complainant party, therefore. My father filed complaint against Yaqoob, etc. Regarding the above said occurrence.'
20. While putting the prosecution case and defence version of the appellants in juxta position, the defence version of the appellants appears to be more probable. Muhammad Afzal (appellant) has stated that infact on the day of occurrence the complainant party along with Shahid Iqbal (deceased) launched an attack and inflicted different injuries on his person, as well as, on the person of Muhammad Yousaf (appellant), with the help of hatchets and 'dang'. It was specifically alleged that Shahid Iqbal (deceased) inflicted a hatchet blow, which landed on the head of Muhammad Yousaf (appellant). He (Shahid Iqbal deceased) also inflicted a hatchet blow, which hit on the head of Muhammad Afzal (appellant). Dost Muhammad inflicted a hatchet blow to Muhammad Yousaf (appellant) which landed on the left side of his head. Murad, inflicted hatchet blow to Muhammad Yousaf (appellant) which landed on his left arm. Muhammad Hanif inflicted hatchet blow to Muhammad Afzal (appellant) which landed on the right side of his face.
Muhammad Yaqoob inflicted 'dang' blow to Muhammad Yousaf (appellant) which hit on his back.
Muhammad Afzal (appellant) further stated that apprehending serious threat to their lives, he and Muhammad Yousaf (appellant) picked up `sotas' and 'dangs' and inflicted some injuries to Shahid Iqbal (deceased) in the right of their private defence and had they not inflicted the said injuries to Shahid Iqbal (deceased), then Shahid Iqbal (deceased) and his companions might have murdered them. The plea taken by the appellants gets support from the evidence of prosecution's own witness namely Doctor Abdul Sattar Randhawa (P.W.4) who has noted three injuries including two incised wounds on the head and right cheek of Muhammad Afzal (appellant) and four injuries including two incised wounds on the head of Muhammad Yousaf (appellant). According to the above mentioned prosecution witnesses the bone of the head of Muhammad Yousaf appellant was exposed. The defence version further gets support from the Medico-legal Report of Muhammad Afzal (appellant) Exh.DB his pictorial diagram Exh.DB/1 and medico-legal report of Muhammad Yousaf (appellant) Exh.DC and his pictorial diagram Exh.DC/1. We have also noted that the prosecution eye-witnesses suppressed the above mentioned injuries on the person of Muhammad Afzal (appellant) and Muhammad Yousaf (appellant), whereas, the appellants have come forward with the true narration of facts and they did not conceal the injuries on the person of Shahid Iqbal (deceased). We have already disbelieved the motive as alleged by the prosecution due to the reasons mentioned in paragraph No,18 of this judgment, rather we have already held in the said paragraph that it was the complainant party and Shahid Iqbal (deceased) who were aggrieved of the abuses given by Ali Sher (appellant) to Shahid. Iqbal (deceased). As the complainant party had the grudge due to the abuses given by Ali Sher (appellant) to Shahid Iqbal (deceased) and as we have also noted in the. Above mentioned paragraph (paragraph No,18 of this judgment) that the occurrence took place near the houses of the accused party (appellants), therefore, the defence version put forth by Muhammad Afzal appellant in his statement recorded under section 340(2), Cr.P.C. And by the remaining appellants in their statements recorded under section 342, Cr.P.C. Appears to be more probable, according to which it was the complainant party who launched an attack on the accused party. Even otherwise we have already discarded the prosecution evidence, therefore, while scrutinizing the statements of the appellants this Court has to accept or reject the said statements in toto. According to the appellants, Shahid Iqbal (deceased) along with other members of the complainant party while armed with hatchets and 'dang' launched an attack on the accused party. Shahid Iqbal (deceased) and other members of the complainant party inflicted injuries with the help of hatchets on the vital parts of Muhammad Afzal and Muhammad Yousaf (appellants) by exposing the bone of the head of Muhammad Yousaf appellant, thus in such situation, the said appellants had the right of private defence of their bodies which also extends to cause death of the assailant as provided under section 100 of P.P.C.
Which is reproduced hereunder:- - `100. When the right of private defence of the body extends to causing death.---The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- 'Firstly. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; ' Secondly. Such an assault as may reasonably cause the ' apprehension that grievous hurt will otherwise be the consequence of such assault; ' Thirdly. ...............................................................
' Fourthly. ................................................................
' Fifthly. .......................................
' Sixthly. .................................................................
It is evident from the perusal of section 100 (secondly) P.P.C. That the right of private defence of the body will extend to the voluntary causing the death of the assailant, if the assailant launches an assault which may reasonably cause the apprehension that grievous hurt will be the consequence of such assault, whereas, in the instant case Shahid Iqbal (deceased) and other members of the complainant party had actually inflicted injuries with hatchets on the vital parts of the bodies of Muhammad Afzal (appellant) and Muhammad Yousaf (appellant) including the exposure of the head bone of Muhammad Yousaf (appellant). The case of the appellants, therefore, squarely falls within the four corners of general exception as provided under section 100 (secondly) P.P.C.
21. Although it has been argued on behalf of the prosecution that the appellants have themselves admitted in their, statements recorded under section 340(2) and 342, Cr.P.C. That some of the appellants, committed the murder of Shahid Iqbal (deceased) but this argument has no force because it is by now well settled law that if the prosecution evidence is disbelieved by the court, then the statement of an accused is to be accepted or rejected as a whole. It is legally not possible to accept the inculpatory part of the statements of accused persons and to reject the exculpatory part of the same, statements. Reference on this context may be made to the case of 'Muhammad Asghar v. The State' (PLD 2008 SC 513). The relevant paragraph of said judgment at page 520 is reproduced hereunder for ready reference:- "It is settled law by now that a statement of an accused recorded under section 342, Cr. P. C. Is to be read in its entirety, is to be accepted or rejected as a whole and reliance should not be placed on that portion of the statement which goes against the accused person. Reference can be made to the case of 'Shabbir Ahmad v. The State' PLD 1995 SC 343 and The State v. Muhammad Hanif and 5 others' 1992 SCMR 2047. It has been held by this Court in the judgment reported as Waqar Ahmad v. Shaukat Ali and others' 2006 SCMR 1139, that prosecution is bound to establish its own case independently instead of depending upon the weakness of the defence, and the assertion of the accused in his statement under section 342, Cr. P. C. Was not sufficient to establish the prosecution case regarding guilt of the accused, and such statement of the accused could be accepted in toto in the absence of any other prosecution evidence. In the case in hand, the High Court should have either accepted appellant's statement in its entirety or rejected it altogether, but it had misdirected itself while choosing a portion of the statement, which went against the appellant, and convicting him."
22. It is true that Muhammad Afzal (appellant) has admitted in his statement recorded under section 340(2), Cr.P.C. Which was relied upon by the other appellants that he (Muhammad Afzal appellant) and Muhammad Yousaf (appellant) inflicted `sota' blows on the head of Shahid Iqbal (deceased) but at the same time he has also stated that he and Muhammad Yousaf (appellant) after receiving serious injuries on the vital parts of their bodies, exercise their right of private defence of body. As mentioned earlier that they further claimed that had they not inflicted injuries to Shahid Iqbal (deceased) then they (Muhammad Afzal appellant and Muhammad Yousaf appellant) might have been murdered at the hands of Shahid Iqbal (deceased) and other members of the complainant party. In view of the above, as we have already discarded the prosecution evidence, the appellants cannot be awarded punishment on the basis of their statements recorded under sections 340(2) and 342, Cr.P.C. By accepting the inculpotary part of said statements wherein they have stated that Shahid Iqbal (deceased) had received `sota' blows on their hands and by rejecting exculpatory part of the same statements wherein they have stated that they inflicted injuries on the person of Shahid Iqbal (deceased) in the right of their private defence of body. We are fortified in our above mentioned views by the judgments passed by the Hon'ble Supreme Court of Pakistan in the case of 'Sultan Khan v. Sher Khan and others' (PLD 1991 SC 520) and `Ghulam Qadir v. Esab Khan' (1991 SCM R 61).
23. In the light of above discussion, we accept the Criminal Appeal No,419 of 2008 filed .By, Yousaf, Ali Sher, Afzal, Riaz, Ozair and Safdar appellants, set aside the impugned judgment dated 15-4- 2008 passed by learned Additional Sessions Judge, Tandlianwala, District Faisalabad. Resultantly the convictions and sentences of the appellants are also set aside and they are acquitted from the charges. Ali Sher, Riaz and Ozair are in custody, they be released forthwith if not required in any other case, whereas Muhammad Yousaf, Muhammad Afzal and Safdar (appellants) are present in court, on bail, their sureties stand discharged. As mentioned earlier Jafar appellant has already died, hence relying upon the report submitted by Superintendent, Central Jail.
' Faisalabad and his death certificate, this murder reference to the extent of Jafar appellant stands abated.
24. Murder Reference No, 121 of 2008 is, therefore, answered in the NEGATIVE and the sentences of death of Ali Sher, Riaz/Jafar and Ozair (convicts) are NOT CONFIRMED.