' SHAHID BILAL HASSAN, J.---The appellants namely Khadim Hussain and Muhammad Hashim sons of Manzoor Ahmad, Caste Pugal, resident of Mouza Mandhal, Tehsil Ahmedpur East, District Bahawalpur were tried along with 10 other co-accused by the learned Addl. Sessions Judge, Ahmedpur East, in case F.I.R. No.59 of 2004 dated 15-2-2004 under sections 302, 324, 148 read with section 149 of the Pakistan Penal Code, 1860 at Police Station Naushehra Jadeed, Tehsil Ahmedpur East, District Bahawalpur. The learned Additional Sessions Judge vide his judgment dated 27-11- 2004 convicted the appellants as under:- ' Khadim Hussain (appellant No.1), to, imprisonment for life under section 302(c) of the Pakistan Penal Code, 1860 with fine of Rs.25,000, in default of its payment to further undergo one year R.I. He was also directed to pay compensation of Rs.25,000 to the legal heirs of the deceased under section 540(A), Cr. P. C. Muhammad Hashim (appellant No.2) to two section 337-F(V) of P.P.C. Both the appellants were extended benefit of section 382-B of the Cr.P.C. While the other accused were acquitted from the charge.
2. Being aggrieved of the impugned judgment dated 27-11-2004 the appellants assailed the same through the appeal captioned above.
3. The complainant (appellant in Criminal Appeal No.353 of 2004/BWP) aggrieved of the impugned judgment to the extent of acquittal of the co-accused (respondents Nos.2 to, 13) has also filed separate appeal. Therefore, both the appeals are disposed of through this single judgment being outcome of same judgment.
4. Briefly the prosecution story permeated in the Crime Report Exh.P.A. Which was lodged on the complaint of Muhammad Nawaz complainant (P.W.1) is as such that Murid Hussain (deceased) and Muhammad Iqbal son of Manzoor Hussain, Pugal by caste, resident of Mouza Mandhal used to deal in joint venture of buying and selling buffalos. Murid Hussain (deceased) had to receive profit amount of Rs.3000 from Muhammad Iqbal, but he was not paying the same to him (deceased). On the preceding day of occurrence, a quarrel took place between them. On the fateful day at about 2.00 0' clock complainant and his brother Murid Hussain (deceased) were standing at the back of their house. In the meanwhile Khadim Hussain (convict/appellant No.1), Muhammad Hashim (convict/ appellant No.2), Muhammad Iqbal, Muhammad Madni, Muhammad Maki sons of Manzoor Ahmad, Abdul Hadi, Jameel Ahmad sons of Abdul Raziq, Haji Zahoor Ahmad son of Abdul Raheem, Jaleel Ahmad, Rafique, Siddique and Saeed Ahmad sons of Bashir Ahmad, all armed with hatchets, chhurry, iron rods and sotis came there. Khadim Hussain with intention to kill caused injury with hatchet on the head of Murid Hussain (deceased), he became unconscious and fell down on the ground. Abdul Hadi hit iron rod on the left arm of Murid Hussain. Muhammad Hashim caused chhurry blow to the complainant, which hit on his right hand and left upper arm.
Muhammad Madni caught complainant from his ears and caused slaps and fist blows. Saeed Ahmed gave beating to complainant with his shoe, on his waist and buttocks. All the remaining accused caused slaps and fist blows to complainant and Murid Hussain. (deceased) on their different parts of bodies. Hue and cry attracted the P.Ws. Muhammad Azam and Sajjad Ahmad, who entreated the accused persons and saved them (Murid Hussain and Muhammad Nawaz) from the clutches of .The accused, persons.
5. Murid Hussain was taken to Rural Health Centre Mubarakpur. Anwar-UI-Haq ASI reached the hospital after receiving the information about the incident, where the complainant (Muhammad Nawaz) got recorded his statementExh.P.A, and thumb marked the same as token of its correctness after having been read over and explained to him.
6. After recording the statement of complainant the I.O., inquired from the Doctor about the condition of Murid Hussain (injured at that time) in order to record his statement, but the doctor told that he was not able to record his statement. On the same day, the Investigating Officer recorded supplementary statement of Muhammad Nawaz. Murid Hussain was referred to B.V.
Hospital Bahawalpur being in serious condition. The Investigating Officer along with police officials proceeded to the place of occurrence and recorded the statements of witnesses under section 161 of the Cr.P.C., prepared rough site plan Exh.PU of place of occurrence, secured bloodstained soil from the place of occurrence, sealed into a parcel and took into possession vide recovery memo Exh.PB. On 19-2-2004, the I.O., received the information from Neuro Surgeory Department B.V.Hospital Bahawalpur that Murid Hussain was in very serious condition, who ultimately expired when the I.O. Reached Neuro Surgeory Ward. Anwar-IA-Haq A.S.-I. (P.W.10) prepared Inquest Report of Murid Hussain, which is Exh PR. The dead-body of Murid Hussain was shifted to mortuary of RHC Mubarakpur through Muneer Ahmad constable for postmortem. After postmortem on the dead- body last worn clothes of the deceased i.e. Shirt P.10, vest P.11, blood stained Chaddar, P.12, were taken into possession vide recovery memo Exh.PM by the I.O. After the death of Murid Hussain, Pervaiz Iqbal S.H.O. (P.W.11) took over the investigation of this case.
7. Khadim Hussain (appellant No.1) and Muhammad Hashim (appellant No.2) were arrested on 23- 3-2004.
8. On receipt of challan, the accused were indicted under sections 302, 148 read with section 149 of the Pakistan Penal Code, 1860, but the accused pleaded not guilty and claimed trial.
9. Ocular evidence was furnished by Muhammad Nawaz complainant (P.W.1) and Muhammad Mehboob (P.W.2).
10. Muhammad Zaffar (P.W.3) rendered the recovery evidence in support of prosecution case, while the medical evidence was furnished by Dr. Abdullah (P.W.8).
11. On 6-4-2004 hatchet was recovered from Khadim Hussain accused which was taken into possession vide recovery memo Exh.PC. Chhurry (P-2) was recovered from Muhammad Hashim accused which was taken into possession vide recovery memo Exh.PD.
12. Liaqat Ali 579/HC (P.W.4), Saeed Ahmad 1074/C (P.W.5), Muneer Ahmad 297/C (P.W.6), Farooq Ahmad Patwari Halqa (P.W.7) and Muhammad Akram ASI (P.W.9) are the formal witnesses.
13. After recording the prosecution evidence, statements of accused persons were recorded under section 342 of the Cr.P.C. All the incriminating evidence was put to them, but they denied the allegations leveled against them during the prosecution evidence and stated that they have falsely been involved in this case. Khadim Hussain (convict/ appellant) also refuted the allegations levelled against him by the prosecution witnesses and in answer to the question why this case against him and why P.Ws. Deposed against him, has stated as under:- "In view of the sudden free fight-four persons were injured through bricks throwing on each other.
The prosecution witnesses nominated in the F.I.R. And the owner of the house where the free fight took place had refused to support false story, consequent upon which the kiths and kins of Muhammad Nawaz complainant and he himself were planted as witness of fiction who have supported a false story."
However, all the accused opted not to give statement under section 340(2) of Cr.P.C.
14. After hearing learned counsel for the parties and perusing the record, the learned trial court passed the impugned judgment dated 27-11-2004 while awarding sentence to the appellants Khadim Hussain and Muhammad Hashim mentioned supra and acquitted the coaccused/respondents Nos.2 to 13 in Criminal Appeal No.353 of 2004.
15. Learned counsel for the appellants Khadim Hussain and Muhammad Hashim argued that the prosecution has miserably failed to establish its case against the appellants beyond shadow of a reasonable doubt; that there are material contradictions and discrepancies in the prosecution evidence, which fact has been admitted by the learned trial court, but even then the conviction has been passed against the appellants; that there is conflict between ocular account and medical evidence; that the impugned conviction has been based on surmises and conjectures which is not warranted under the law and even a slightest doubt would go in favour of the appellants, as the accused is a favourite child of law; that the stance taken up by the defence side (appellants) has been established through independent evidence of doctor (P.W.8) and the Investigating Officers i.e, P.W.10 and P.W.11, but even then the learned trial court has passed the conviction against the appellants, which is against the justice and the precedent set by the apex Court that if the prosecution fails to prove its case by producing cogent, trustworthy and reliable evidence, the stance taken up by the defence side would be taken up in toto, which has been proved on record; that there are improvements in the statements of the P.W. As compared to the statements recorded by the Investigating Officers; that in fact no recovery has been effected from the appellants, rather fake recovery has been planted in order to strengthen the prosecution case; that even if the recovery of alleged weapons of offence is believed, the same is of no avail to the prosecution case as it has been shown to be made on 6-4-2004 after about two months and 9 days of the alleged occurrence and such type of recovery loose its credence; that the person in whose courtyard the alleged occurrence took place, has neither been produced before the police, nor appeared in the witness box before the learned trial court, which speaks volume about the veracity and authenticity of the prosecution story, even this fact has been admitted by the learned trial court that the occurrence has not taken place in the mode and manner as narrated by the complainant and P.W.; that the learned trial court while believing the same set of evidence has rightly acquitted the co-accused but to the extent of convicts/appellants the same has been misconstrued which is harsh, perverse and against the law on the subject. Adds that awarding sentence of imprisonment for life, under the circumstances of the case, is not sustainable in the eye of law. Lastly prayed that while setting aside the impugned conviction order, the appellants may be acquitted.
16. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant/ appellant Muhammad Nawaz has opposed the submissions made by learned counsel for the appellants Khadim Hussain, etc. And argued that the prosecution has proved its case against the present appellants as well as respondents Nos.2 to 13/coaccused, who are vicariously liable and committed the occurrence in the mode and manner as narrated in the F.I.R; that the sentence awarded to the appellants is meager and learned trial court has taken a lenient view; that to the extent of acquittal of the co-accused/respondents Nos.2 to 13, the findings of the learned trial Court are not based on cogent reasoning; that the time, place and presence of the injured P.W. Is admitted by the defence; that the substitution is rare phenomenon when the injured P.W. Appeared before the learned trial court and got recorded his evidence by attributing specific roles to each of the accused; that motive part of the occurrence has been proved indubitably and same fact, has been admitted by the learned trial Court; that the defence remained changing its stances during the cross-examination, even while recording statement under section 342 of Cr.P.C.
Khadim Hussain (appellant) opened a new orifice, hence, the defence taken by the accused cannot be believed in anyway; that the medical evidence is in line with the ocular account.
Therefore, appeal filed by Khadim Hussain and Muhammad Hashim may be dismissed, while by accepting the appeal filed by Muhammad Nawaz complainant, the respondents Nso.2 to 13 may be convicted and sentenced, accordingly.
17. We have heard the learned counsel for the parties as well as learned D.P.G. For the State and gone through the record.
18. Perusal of the record and evidence of both the sides makes it clear that the time, place and occurrence as well as the presence of the A accused persons is admitted. The only question which requires discussion and consideration is the mode and manner of occurrence. The defence took the stance that a Punchayat was convened in order to settle the disputes in the house of one Muhammad Akbar, but on some trivial bop the sides annoyed and flared up in a spur of moment, which culminated into the present occurrence. The bricks were lying over there, which were pelted by the parties on each other, which divulges that it was not a pre-planned and pre-meditated occurrence, rather it occurred at the spur of moment and the accused party was not having any intention to commit Qatl-e-Amd of Murid Hussain. This fact finds support from the evidence of Anwar Ul Haq A.S.-I. (P.W.10) who has conceded that it subsequently was heard about pelting of pieces of bricks on each other. The deposition of Pervez Iqbal S.I./S.H.O. (P.W.11) is also in line with that of P.W.10 who deposed that broken pieces of bricks were pelted on each other in this occurrence. During the investigation, it has come on surface that free fight took place inter se the parties. When none of the accused has intention to kill any particular person on the side of the complainant party and both the parties were itching for a confrontation and a clash and in sense, complainant party and accused came to a clash and had a free fight which was apparent from the facts that only one Khadim Hussain (appellant) allegedly gave hatchet blows on the head of deceased and none of the remaining accused were alleged to have given any blow to him from the weapons held by them, as is evident from the medical evidence. However, there is conflict in the contents of the F,I.R. And the medical evidence as well as deposition of P.W.1 & P.W.2 regarding causing of injuries on the head of Murid Hussain (deceased) with hatchet, as in F.I.R. it has been stated that Khadim Hussain caused hatchet blow on the head of Murid Hussain, while at the time of recording evidence as P.W.1 and P.W.2 both the witnesses have improved their version by stating that two blows of hatchet, one on right side of top and other on left side of top, of head were caused by Khadim Hussain, which casts aspersion about the veracity of the prosecution case regarding the mode and manner of the occurrence, rather it supports the version of the defence that it was a free fight during the Punchayat held to settle the disputes between the parties. But, though there is conflict inter se the ocular account and medical evidence regarding number of injuries yet the seat of injury remains the same i.e. Head; therefore, when we juxtapose both the stances, taken by prosecution and defence, admission on the part of accused side coupled with deposition of injured/complainant, on oath, suffices it to conclude that appellant-convict Khadim Hussain caused injury on the head of Murid Hussain deceased which, later on resulted in his death due to hematoma.
19. Moreover, the prosecution side has suppressed the injuries sustained by the appellant Khadim Hussain and one Mst. Rehmat Bibi during the occurrence, while recording the complaint, which shows mala fide and and manifests that the prosecution has not stepped into the arena with clean hands, as is evident from the evidence of Dr. Abdullah (P.W.8) who medically examined said Khadim Hussain and Rehmat Bibi.
20. As far as the recovery is concerned, same has allegedly been effected after about two months and nine days of the occurrence, which, in the eye of law has no credence, as one cannot keep the weapon of offence for such a long period in order to get the same recovered for using the same as supportive evidence to pass conviction against him. Even otherwise, the recovery witnesses are closely related to the complainant, P.W.2 and the deceased and they failed to establish their purpose of presence at the time of disclosure of the appellants/convicts, so their testimony coupled with laps of long period, cannot be relied upon.
21. Motive part of the occurrence has not been rebutted during the cross-examination, which means the same has been admitted by the defence. When a fact remains un-rebutted or no question to shake the same is put by the defence, the same would be admitted to be true. The motive as alleged by the prosecution stands admitted and proved.
22. As far as the appeal filed by Muhammad Nawaz complainant is concerned, it would not go without saying that there is tendency in our society especially in the countryside that a wider net is spread in order to involve whole male family members so as to obstruct them in pursuing the case.
Therefore, the findings of, the learned trial court regarding the acquittal of co- accused/respondents Nos.2 to 13 in Criminal Appeal No.353 of 2004, filed by Muhammad Nawaz complainant is based on plausible and cogent reasoning coupled with the fact that they played no active role during the occurrence and no injury is attributed to the deceased at their hands because same finds no support from the medical evidence, especially Abdul Hadi, Jaleel and Zahoor have been found innocent during the investigation. Admittedly, the ordinary scope of appeal against acquittal of the accused-respondents is considerably narrow and limited. On the examination of the judgment of the acquittal as a whole, credence would be accorded to the findings of the learned trial Court, whereby the accused-respondents had been exonerated from H the charge of commission of the crime. It is well settled law that once a judgment of acquittal is recorded, the accused earns double presumption of innocence, therefore, such judgment cannot be interfered with unless and until strong and exceptional circumstances exist, warranting interference by this Court which the instant case to the extent of respondents Nos.2 to 13 is lacking.
The learned Trial Court has not ignored the evidence on the record nor has discarded any evidence against the law. In these circumstances, the learned Trial Court has rightly acquitted the accused-respondents Nos.2 to 13. Even otherwise, the acquittal of .The said respondents is neither perverse nor based upon misreading and non-reading of evidence. In this regard reference can be made to the case of lftikhar Hussain and others v. The State (2004 SCM R 1185), wherein the Hon'ble apex Court invariably held that' "It is well settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417, Cr.P.C. Are obliged to be very careful in dislodging such presumption. Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another v.
Mumaraz Khan and others PLD 1985 SC 11 that the appellate Court seized with the acquittal appeal under section 417, Cr.P.C. Is competent to interfere in the order challenged before it provided it has been established that the trial Court has disregarded material evidence or misread such evidence or received such evidence illegally.....". In this regard further reliance can be placed on the case of Haji Amanullah v. Munir Ahmad and others (2010 SCM R 222) wherein it has been held by the apex Court that "It is well settled by now that in an appeal the Court would not interfere with acquittal merely because reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible, then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
23. The report was called for from the Superintendent, Central Jail, Bahawalpur with regards to the served and un-served sentence of the appellant Khadim Hussain. In compliance with the orders of this court, the Superintendent, Central Jail, Bahawalpur vide his letter dated 2-4-2013 informed this Court that the appellant Khadim Hussain has served out sentence of eleven years two months and 9 days as on 2-4-2013 and the remaining portion of sentence is 13 years 09 months and 21 days, if fine is paid. In this regard, the arguments of the learned counsel for the appellant Khadim Hussain carries weight as, the quantum of sentence awarded to the appellant is harsh. Admittedly, the appellant has'served out 11 years and more than two months sentence, awarded to him. Without touching any other merits at this stage coupled with mitigating circumstances such as suppression of injuries received by accused side, occurrence being result of free fight without premeditation and belated recovery, we find it appropriate to modify the impugned judgment and while taking a lenient view uphold the conviction of the appellant Khadim Hussain but keeping in view the mitigating circumstances discussed above, reduce his sentence from imprisonment for life to 14 years. So far as the imposition of fine Rs.25,000, in default of payment to further undergo one year R.I. Same is reduced from one year R.I. To three months R.I., while the order germane to payment of compensation Rs.25,000 is concern, same is upheld.
24. So far as the convict-appellant Muhammad Hashim is concerned, he has already undergone 10 months of sentence awarded to him. Had he been behind the gallows, the remittance granted by the government from time to time would have affected his sentence and he had been released from jail after serving out his sentence. He has faced the agony of trial by appearing before this Court after release on bail pursuant to suspension of sentence awarded to him as well as before the learned Trial Court; therefore, taking a lenient view, the sentence already undergone by him is considered as sufficient. He is present before us on bail due to suspension of sentence, so he is set at liberty and his surety stands discharged.
25. For what has been discussed above, the Criminal Appeal No.360 of 2004 titled "Khadim Hussain, and others v. The State, and others" is partly allowed with the above mentioned modification, while the Criminal Appeal No.353 of 2004 titled "Muhammad Nawaz v. The State, and others" is dismissed being devoid of any force.