SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Bashir son of Shera, caste Aarbi, resident of Chak No,465/JB, Tehsil Chiniot, District Jhang, appellant, along with Muhammad Yar son of Ameer, respondent No,4 in Criminal Appeal No,1031 of 2005, Nazeer Ahmed son of Shera, Ameer son of Rehman and Muhammad Ali son of Sada (since acquitted) was involved in Case FIR No,254 of 2002, dated 12-5-2002, offence under sections 302, 337-L(2), 148, 149, P.P.C., registered at Police Station Saddar Chiniot, District Jhang, and was tried by learned Additional Sessions Judge, Chiniot, District Jhang. The learned trial court seized with the matter in terms of judgment dated 30-4-2005 convicted and sentenced the appellant as under: - "Under section 302(b), P.P.C., sentenced to undergo imprisonment for life with direction to pay Rs,1,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr. P. C. And in case of default in payment thereof, to further undergo S.I. For six months. He was also burdened to pay Rs,50,000 as fine and in case of default in payment of fine, to further undergo S.I. For three months.
Benefit of Section 382-B, Cr.P.C. Was, however, extended in favour of the appellant."
2. Feeling aggrieved by the judgment of the learned trial court, Bashir appellant, has assailed his conviction and sentence through filing Criminal Appeal No,1029 of 2005. The complainant being dissatisfied regarding the acquittal of Nazir, Ameer, Muhammad Yar and Muhammad Ali, accused, preferred Criminal Appeal No,1031 of 2005, which was dismissed as not pressed to the extent of Nazir, Ameer and Muhammad Ali/respondents vide order dated 7-2-2006, while Muhammad Yar/respondent No,4 is under notice. The complainant also filed Criminal Revision No,583 of 2005 seeking enhancement in sentence inflicted upon Bashir, appellant. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as contained in the FIR (Exh.PA/1) lodged on the complaint (Exh.PB) of Riaz Hussain son of Sohna, caste Aarbi, resident of Chak No,465 (PW-4) is that he is involved in Zamindara. On 12-5-2002 the complainant was ploughing his fields at a distance of 1-Acres from his dhari. Sohna son of Momand father of the complainant and his mother Mst. Nooran Bibi reached at dhari to deliver breakfast of the complainant. In the meanwhile at 7-30 a.m.
Muhammad Ali son of Sada, Nazeer, Bashir both sons of Shera, Muhammad Yar son of Ameer, Ameer son of Rehman, all Aarbi by caste and residents of the same village, armed with sotas while raising lalkaras reached there and said that they would not spare them. Thereafter Bashir inflicted a sota blow at the head of father of the complainant. Second sota blow was given by Muhammad Yar accused, which landed at the neck on back side of head. Muhammad Ali also gave a sota blow at the back of father of the complainant, who on receipt of injuries fell down on the ground and thereafter Nazeer and Ameer also inflicted sota blows landing at different parts of his body. Mother of the complainant stepped forward to rescue her spouse and Ameer and Nazeer accused inflicted sota blows on her person. On the hue and cry raised by the complainant Ahmed Yar son of Ameer Hussain, Nazeer son of Sada both Aarbi by caste and residents of the same village, attracted to the spot, they witnessed the occurrence and beseeched the accused persons. However, father of the complainant succumbed to the injuries at the spot.
Motive behind the occurrence as disclosed in the crime report was dispute over land and due to this grudge the accused persons, in connivance with each other, had committed murder of father of the complainant and also inflicted injuries to his mother.
4. While leaving the PWs to safeguard the dead body, the complainant was going to report the matter to Police Station when at Bus Stop Barjian, he met with Mumtaz Hussain, S.I. (PW-9) who recorded his statement and after endorsing police karvai, transmitted it to Police Station through Zafar Iqbal Constable No,870/C for registration of formal FIR. Thereafter, the Investigating Officer proceeded to the place of occurrence, inspected the dead body, prepared injury statement (Exh.PE), drafted inquest report (Exh.PF) and handed over the dead body to Bashir Ahmed C/10 (PW-7) for escorting it to mortuary for autopsy. The Investigating Officer also prepared injury statement of Mst. Nooran Bibi (Exh.PH) and sent her for her medical examination through constable. From the spot, the Investigating Officer took into possession turban blood stained (P-3) of Sohna deceased vide recovery memo. Exh.PK. He also prepared rough site plan of the place of occurrence (Exh.PJ). After the post mortem examination, last worn clothes of the deceased shirt (P- 1) and chadar (P-2) were produced before the Investigating Officer, which he took into possession vide recovery memo. Exh.PC. On the direction of the Investigating Officer and on the pointing out of the PWs, on 15-5-2002, Muhammad Ashraf Patwari (PW-6) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PB and Exh.PB/1), which was made part of the file.
On 30-5-2002, the Investigating Officer arrested Bashir appellant, who during the course of interrogation, in pursuance of disclosure led to the recovery of sota (P-6), which was taken into possession vide recovery memo. Exh.PN. On reaching the Police Station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. It is pertinent to mention here that Muhammad Yar/respondent No,4 in Criminal Appeal No,1031 of 2005 was found innocent during the course of investigation.
5. After conclusion of investigation the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the Court of Session enrouted through Illaqa Magistrate as provided under section 190(2), Cr.P.C. After submission of challan, learned Additional Sessions Judge, Chiniot vide order dated 19-3-2004 formally charge sheeted the appellant and his co-accused under sections 302, 337-L(2). 148. 149, P.P.C., to which they pleaded not guilty and claimed trial.
Prosecution in order to prove its case produced as many as nine (9) prosecution witnesses.
6. Occular account in this case consists of the statements of Riaz Hussain, complainant (PW-4) and Mst. Nooran Bibi, injured (PW-5). Shaukat Hayat HC/652 (PW-2) had chalked out formal FIR while Muhammad Ashraf, Patwari (PW-6) had prepared scaled site plan of the place of occurrence. Investigation in this case was carried out by Mumtaz Hussain, S.I. (PW-9).
Dr. Mumtaz Hussain Sajid (PW-8) had medically examined Mst. Nooran Bibi, injured and observed following injuries on her person:-- "(1) A contusion 7 cm x 5 cm on back of left elbow joint.
(2) A contusion 5 cm x 3 cm on lateral side of right arm.
(3) A contusion 10 cm x 3 cm on right thigh lateral side.
(4) A contusion 9 cm x 3 cm on lateral side of left thigh. "
On the same day, the doctor also conducted post mortem examination on the dead body of Sohna deceased and observed following injuries on his person:-- "(1) A lacerated wound 5 cm x 1 cm bone deep on back left side of head.
(2) A swelling 8 cm x 6 cm on right side of head on temporal area.
(3) A contusion 20 cm x 4 cm on back upper part both sides of chest.
(4) A contusion 8 cm x 4 cm on back lower part of left side of chest.
(5) A contusion 8 cm x 4 cm on back at lumber region. On dissection of skull the skull was fractured into multiple pieces, memberanes were ruptured, brain contused and collided blood, blood present in cranial cavity."
After conducting postmortem examination, the doctor rendered the following opinion:-- "Death in my opinion was due to haemorrhage and shock and injury to vital organ brain caused by injuries Nos. 1 and 2 which are sufficient to cause death in ordinary course of nature and are fatal. Rest of all injuries are under section 337-1)(2) miscellaneous. All the injuries were ante- mortem and caused by blunt means.
Time between injury and death immediate and time between death and post mortem about 6 to 8 hours."
Statements of rest of the prosecution witnesses are formal in nature.
7. Vide his statement recorded on 2-7-2004, learned Special Public Prosecutor gave up Ahmed Yar, Nazeer Ahmed and Ghulam Sarwar, PWs, being unnecessary. On 22-2-2005 he further gave up Babar Nawaz, S.I. Again being unnecessary and after tendering in evidence the report of Chemical Examiner (Exh.PP) and report of Serologist (Exh.PR), he closed the prosecution evidence.
8. Bashir, appellant, and Muhammad Yar, respondent No,4 in Criminal Appeal No, 1031 of 2005 were also examined under section 342, Cr.P.C; wherein both of them opted not to appear as their own witnesses in terms of section 340(2), Cr.P.C. In disproof of allegations levelled against them in the prosecution version. Muhammad Yar, respondent also opted not to adduce evidence in his defence, however, Bashir appellant opted to lead evidence in his defence. While replying to the question why this case against him and why the PWs deposed against him, Bashir, appellant made the following deposition:-- "The witnesses are related inter se. Shona deceased purchased land from Moonda, father of Mst.
Sahib Bibi, secretly and Moonda was of unsound mind and when Mst. Sahib Bibi and her brother Riaz came to know about this transaction, they filed a civil suit in court at Chiniot and got temporary injunction not to dispossess from the said land. Complainant also filed a civil suit against Mst. Sahib Bibi, Riaz and their mother. Both the civil suits are still pending in court, on the day of occurrence, Mst. Sahib Bibi, mother and brother were present in the disputed land and were collecting 'Sittas' of wheat crop. Riaz Hussain, Arshad Hussain, Falaksher, Ameer, Kaneez, Zareena, Rehmi and one Zafar Sadhu resident of Chak No,11/JB armed with Sotas came there and forcibly took possession of the said land and caused Sota blows to Mst. Fatima, Mst. Sahib Bibi daughter of Moonda and Mst. Daullan Bibi. Zafar Sadhu gave sota blow on the head of Sohna who became unconscious. The police reached the spot. Both parties were injured that they were got medically examined through police. Sohna died after same. The complainant with the connivance of investigating Officer got registered the case against me and others co-accused and did not record our version and attached MLCs of our injured persons. I was arrested Mst. Fatima filed a private complaint against Arshad etc. Under sections 447, 354, 337-A(i), 148, 149, P.P.C., in which the accused have been summoned on 22-5-2003 and the complaint is sub judice in the court of Judicial Magistrate at Chiniot and the accused have not appeared in court so far. The complaint case has been filed after proceeding under 5.512, Cr.P.C. Against the complainant of this case and others. I am innocent." While replying to similar question Muhammad Yar/respondent deposed as under:-- "I rely upon the statement of Bashir co-accused recorded in the court in my presence."
In defence, Shafiq-ur-Rehman, ASI (DW-1), Ijaz Ahmed (DW-2) and Dr. Muhammad Saif Ullah Haral (DW-3) made their statements.
9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record found the version of the prosecution proved beyond any shadow of doubt, resulting into conviction of the appellant in the above stated terms. However, Muhammad Yar/respondent No,4 along with other co- accused, was acquitted of the charge.
10. Mr. Muhammad Usman Naseem, Advocate for the appellant while opening his arguments contended that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts of the case and law on the subject. Contended that the occurrence in the instant case had taken place on 12-5-2002 at 7-30 a.m. While the matter was reported to the police with a delay of about three hours at 10-20 a.m. For which no plausible explanation has been rendered by the prosecution. Learned counsel submitted that as a matter of fact it is a case of free fight, however, by exaggerating the facts and circumstances, the instant crime report was lodged. Even otherwise, the story advanced by the prosecution does not seem plausible. It was vehemently argued that during the occurrence from the accused side, two women folk namely Ghulam Fatima and Sahib Bibi, had received injuries, however, those were suppressed by the complainant. Even while appearing in the witness box Dr. Muhammad Saif Ullah Haral (DW- 3) had also affirmed the stamp of injuries on their person. Further submitted that recovery of sota (P-3) from the appellant being of general pattern, does not corroborate the prosecution version. It was argued that Ahmed Yar and Nazeer Ahmed were independent witnesses of the occurrence, however, their evidence was withheld by the prosecution, which casts serious doubts about the truthfulness about the genuineness of the prosecution version. Learned counsel argued that the medical evidence does not corroborate the prosecution case in stricto sensu. It was vehemently submitted that no evidence whatsoever was adduced by the prosecution to substantiate the motive part of the occurrence. Next argued that during the course of investigation' out of five accused persons, four were found innocent. Moreover they were also acquitted of the charge on the same set of evidence. Finally it was argued that in view of untrustworthy evidence, which lacked corroboration from independent source, the learned trial court was not justified in recording conviction against the appellant as such he is entitled to his clean acquittal of the charge.
11. On the other hand, learned District Public Prosecutor by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant. It was argued that the appellant is duly named in the crime report of daylight occurrence and the parties being previously known to each other no question of misidentification arises. Further contended that the presence of the prosecution witnesses at the place of occurrence at the relevant time was fully established, who while appearing in the witness box gave detailed pen-picture of the occurrence.
Even Mst. Nooran Bibi (PW-5) had herself sustained injuries during the occurrence, therefore, her presence at the place of occurrence at the relevant time could not be questioned. Although they were subjected to lengthy cross-examination, however, nothing adverse to the prosecution version could be brought on record. It was argued that the medical evidence fully substantiates the prosecution case. As far as injuries on the person of Ghulam Fatima and Sahib Bibi, are concerned, it was argued that the occurrence had taken place on 12-5.2002, while they were examined on the subsequent day at 6-40 p.m. And that's too by a male doctor although it is alleged that injuries on the person of Ghulam Fatima were on private parts of her body. Even the doctor had conceded that there was possibility that the injuries were caused by friendly hands. Next argued that during the course of investigation sota (P-6) was recovered on the pointing out of the appellant and according to report of Serologist (Exh.PQ) it was found stained with human blood, which further establishes link of the appellant with the occurrence. It was vehemently argued that during the course of investigation, the appellant was found guilty and his name was placed in column No,3 of the report prepared under section 173, Cr.P.C. It was finally argued that the appellant inflicted sota blow at the vital organ of the body, which resulted into instantaneous death of the deceased, therefore, the learned trial court was rightly justified in recording conviction against him under the provisions of section 302(b), P.P.C.
As far as Cr 1 . .Revision No,583/2005 is concerned, learned counsel for the complainant/petitioner argued that the respondent/accused has been ascribed fatal shot on the person of Sohna deceased, therefore, in absence of any extenuating circumstances, the alternative sentence inflicted by the learned trial court is not justified and prayed for enhancement in his sentence under section 302(b), P.P.C.
12. While arguing Criminal Appeal No,1031 of 2005 learned counsel for the complainant contended that Muhammad Yasir/respondent No,4 was named in the crime report .With specific role and injury ascribed to him is fully substantiated through the medical evidence. It was next argued that in view of overwhelming evidence available on record, the learned trial court was not justified in acquitting him of the charge merely on the basis of police investigation, hence learned Division Bench rightly issued notice against him, who is liable to be dealt with under the relevant provisions of law.
13. In rebuttal, learned counsel for respondent No,4 contended that although he is named in the crime report, however, during the course of investigation, it was found that he was not present at the place of occurrence at the relevant time. Moreover, nothing was recovered on his pointing out.
Finally argued that in view of deficit material brought forth on record, the learned trial court rightly extended the premium of innocence in his favour, therefore, the appeal is liable to be dismissed particularly when it was withdrawn to the extent of rest of accused/respondents Nos.2, 3 and 5.
14. We have given our anxious consideration to the arguments advanced by learned counsel for the parties and perused the record with the able assistance of learned counsel for the appellant, learned counsel for the complainant, learned counsel for respondent No,4, as well as, learned District Public Prosecutor.
15. According to prosecution version in the instant case the occurrence had taken place on 12-5- 2002, at 7-30 a.m. In the remote area of Chak No,465, Tehsil Chiniot in the fields owned by the complainant family while subsequently the crime report was lodged at 10-20 a.m. Whereas inter se distance between the place of occurrence and the police station was 15 miles. Keeping in view the place of occurrence, the distance between the place of occurrence and the police station and area being remote, as well as, availability of limited means of transport, the delay caused in lodging the crime report is quite natural and the same in no way imprints any negative inference on the prosecution version. In order to substantiate its version, the prosecution has adduced evidence in the shape of occular account, medical evidence, recovery of sota, motive, as well as, investigation and other corroborative piece of evidence.
16. As far as occular account in this case is concerned, the same consists of the statements of Riaz Hussain (PW-4)/complainant and Mst. Nooran Bibi (PW-5). Admittedly the complainant family is involved in Zamindara while it is very common in our rural areas that elders of the family particularly females use to visit the fields in the morning to serve the breakfast to the male members, busy in working over there. Hence, presence of the complainant and his mother along with the deceased, as well as, purpose of their visit in the morning time, was quite natural, which straightway appeals to reason. While appearing in the witness box, both the prosecution witnesses fully substantiated the prosecution case by giving minute details qua presence of the complainant in the fields for ploughing, and Mst. Nooran Bibi along with Sohna, as well as, emerging of the appellant along with his co-accused at the relevant time. Close scrutiny of the statements of the prosecution witnesses of occular account reveals that the story disclosed by them is convincing one and appeals to reason and it cannot he even assumed that any of them had tried to exaggerate the prosecution story. It is. Pertinent to mention here that the occurrence had taken place daylight and the parties were also previously known to each other, which fact further rules out any possibility of misidentification to the extent of the appellant in this case.
Moreover, Mst. Nooran Bibi (PW-5) had herself sustained injuries during the occurrence while it is cordial principle of law that statement of an injured witness is to be evaluated with more care and caution as compared to other witnesses as there is every possibility that after sustaining injuries the vindictiveness may enhance, however, while examining the statement of Mst. Nooran Bibi, it is crystal clear that she has advanced the prosecution case in a natural style to the extent of appellant and there is not a single circumstance available on record from where it could be assessed that she had made any effort to exaggerate the prosecution story regarding culpability of the appellant.
Likewise during the course of arguments learned counsel for the appellant had pointed out that both the prosecution witnesses are closely related inter se, as well as, with the deceased, therefore, they made statements being interested witnesses. However, at the same time it has been the consistent view of the superior courts of the country that mere close relationship of the prosecution witnesses inter se or with deceased would not discard their testimony if otherwise the same is reliable, trust worthy, appealing to reason and corroborated by independent circumstances as has happened in the case in hand. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ijaz Ahmad v. The State (2009 SCMR 99) and Talib Hussain, and others v. The State and others (2009 SCMR 825).
16. As far as contention of learned counsel for the appellant qua non-production of Ahmed Yar and Nazeer, PWs, is concerned, even in their absence the prosecution version was substantiated through the statements of Riaz Hussain complainant, as well as, Mst. Nooran Bibi, therefore, considering it sufficient, the prosecution rightly gave up them and this aspect does not create any serious dent in the prosecution version. Moreover, it is cordial principle of law that quantity of evidence is not essential rather quality is sine qua non for establishing guilt against a person facing charge. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Abid Ali and 2 others v. The State (2011 SCMR 208); wherein it was held as under:-- "---As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of evidence; it is not that who is giving evidence and making statement; what is relevant is what statement has been given; it is not the person but the statement of that person which is to be seen and adjudged."
Similar view was affirmed in the case of Niaz-ud-Din and another v. The State and another (2011 SCMR 725). Moreover, in the Indian jurisprudence in the case of Takdir Samsuddin Sheikh v. State of Gujarat and another (2012 SCMR' 1869) the above view was given ascent.
17. Next limb of the prosecution case is medical evidence comprising of statement of Dr. Mumtaz Hussain. Shahid (PW-8), who had medically examined Mst. Nooran Bibi (PW-5). The doctor had also conducted post mortem examination on the dead body of Sohna father of the complainant.
While appearing in the witness box, he had affirmed the locale/stamp of injuries on the person of injured, as well as, deceased. The doctor also observed that the injuries on the person of injured, as well 'as; deceased were caused by blunt weapons. Moreover, the duration of injuries given by the doctor also coincides with the averments of the crime report.
18. In the crime report the appellant was ascribed the role of inflicting injuries with sota and during the course of investigation, the appellant, after, making disclosure led to the recovery of sota (P-6), which was taken into possession by the Investigating Officer vide recovery memo. Exh.PN. Moreover, the crime weapon (sota) was sent to the office of Chemical Examiner and Serologist and according to report of the office of Serologist (Exh.PQ) it was stained with human blood.
19. As far as contention of learned counsel for the appellant that the instant occurrence is result of free fight in which allegedly Ghulam Fatima and Sahib Bibi from the accused side sustained injuries is concerned, we have examined the contents of the crime report, as well as, the statements of the prosecution witnesses of occular account, the version advanced by the appellant in his statement recorded under section 342, Cr.P.C. And the MLRs of the injured ladies. Admittedly the occurrence had taken place on 12-5-2002 at 7-30 a.m. While Ghulam Fatima and Sahib Bibi were medically examined by Dr. Muhammad Saifullah Haral (DW-3) on the following day i,e, 13-5-2002 at 6-40 p.m. Moreover, Mst. Ghulam Fatima had allegedly received injuries on private parts of her body i,e, chest and thigh and it was not possible for a male doctor to examine the lady by removing her clothes particularly when lady doctor was also available in the hospital and there was no emergency as about 36 hours had already elapsed after the occurrence. Fact remains that while appearing in the witness box DW-3 had admitted that there was possibility that the injuries were caused by friendly hands. Hence, these facts and circumstances repel the contention of learned counsel for the appellant.
20. Upshot of the above discussion is that the prosecution has substantiated its case through leading evidence by the most natural witnesses of the occurrence, who remained coherent on salient features of the prosecution version. The medical evidence fully substantiates the prosecution case especially the locale of injuries on the person of deceased and time between death and postmortem examination corroborated by recovery of sota (P-6) and the fact that during the course of investigation, having been found guilty name of the appellant was placed in column No,3 of the report prepared under section 173, Cr.P.C. Hence, the learned trial court was well justified in passing conviction against the appellant. Therefore, we find no reason to interfere in the impugned judgment to his extent. Resultantly, Crl. Appeal No,1029 of 2005 filed by Bashir, appellant is dism issed in toto as a consequence whereof, conviction and sentence recorded in the impugned judgment dated 30-4-2005 is maintained.
21. Now we take up the case of Muhammad Yar, respondent No,4 in Criminal Appeal No,1031 of 2005, against whom notice was issued vide order dated 7-2-2006. Admittedly he is named in the crime report with role of inflicting sota blow on the back side of head of the deceased, however, during the course of investigation, the Investigating Officer found that he was not present at the place of occurrence at the relevant time. Moreover, nothing was recovered on his pointing out during the course of investigation. In this backdrop learned trial court was well within its jurisdiction in observing that the prosecution case lacks sufficient material to be made basis for conviction of any person in a criminal case particularly when to the extent of Nazir, Ameer and Muhammad Ali/respondents, the instant appeal stood withdrawn on 7-2-2006. Even otherwise in view of ratio decidendi of august Supreme Court of Pakistan in the case of Ghulam Sikandar and another v.
Mamaraz Khan and others (PLD 1985 SC 11), after acquittal presumption of innocence becomes double in favour of accused. We have not been able to locate any compelling circumstances prompting this Court to interfere in the acquittal already recorded by the learned trial court.
Resultantly, Crl. Appeal No,1031 of 2005 to the extent of Muhammad Yar/respondent No,4 is dismissed.
22. As far as Criminal Revision No,583 of 2005 filed by the complainant seeking enhancement in sentence of the appellant is concerned, for the afore-stated reasons particularly when on the same set of evidence four co-accused were acquitted, we have been persuaded to hold that the learned trial court was rightly justified in inflicting alternative sentence provided under the statute.
Resultant Criminal Revision No,583 of 2005 hereby stands dismissed.