MANZOOR AHMAD MALIK, J.---Criminal Petitions Nos.889 and 890-L of 2016: Petitioners Wajahat Ahmad and Nisar Ahmad along with their codaccused Muhammad Akram, Abdul Jabbar and Naseer Ahmad faced trial in a complaint case titled Sajwar Ahmed v. Nisar Ahmed etc filed under sections 302, 109, 337-A(iii), 337-L(2), 148, 149, P.P.C., relating to an occurrence which was initially reported to police vide FIR No, 439 of 2010, dated 27.10.2010, offences under sections 302, 109, 337- A(iii), 337-L(2)/34, P.P.C., registered at P.S. Gogera, District Okara. The learned trial Court vide judgment dated 13.02.2013 acquitted the co-accused of petitioners namely Naseer Ahmed but convicted the petitioners and their co-accused Abdul Jabbar and Muhammad Akram in following terms:- Nisar Ahmed Under section 302(B), P.P.C.: imprisonment for life as Taz'ir for committing Qatl-i-amd of Mst. Surayya Bibi, and to pay compensation of Rs,400,000/- under section 544-A, Code of Criminal Procedure to the legal heirs of the deceased, in default whereof to undergo 06 months' SI.
Wajahat Ahmed:Under section 337-L(2), P.P.C.: Two years' RI with Daman of Rs,25000/- to be paid to the injured/complainant.
Muhammad Akram:Under section 337-L(2), P.P.C.: Two years' RI with Daman of Rs,25000/- to be paid to the injured/complainant.
Abdul Jabbar: Under section 337-A(iii), P.P.C.: Two years' RI as Taz'ir and to pay 10% of Diyat amounting to Rs,1,46,516/- for causing injury to the complainant.
Under section 337-L(2), P.P.C.: Two years' RI with Daman of Rs,10,000/ - to be paid to the injured/complainant. Both the sentences were ordered to run concurrently.
2. Benefit of section 382-B, Code of Criminal Procedure was extended to the convict-petitioners and their co-accused.
3. Convict-petitioners filed criminal appeals assailing their conviction/sentence before the learned High Court. The learned High Court, vide the impugned judgment, disposed of the Criminal Appeal (bearing No, 418 of 2013) filed by Nisar Ahmad thereby setting aside his conviction and sentence under section 302(b), P.P.C., however, convicted him under section 316, P.P.C. And sentenced him to 07 years' RI as Taz'ir and also directed Nisar Ahmad to pay Diyat amounting to Rs,14,65,163/ to the legal heirs of the deceased. Benefit of section 382-B, Code of Criminal Procedure was extended to him. The learned High Court while disposing of the Criminal Appeal (bearing No,143 of 2013) filed by convict-petitioner Wajahat Ahmed, maintained his conviction under section 337-L(2), P.P.C., and reduced his sentence of 02 years to the sentence already undergone by him. The sentence to pay Daman of Rs,25,000/- to complainant Sajwar Ahmad was, however, maintained. Hence these petitions for leave to appeal.
4. It is mentioned in the impugned judgment of the learned High Court, that aggrieved of the acquittal of Muhammad Akram, Abdul Jabbar, Wajahat Ahmad and Naseer Ahmad from charges under sections 302, 109, 148, 149, P.P.C., the complainant filed PSLA No, 54 of 2013 but the same was dismissed as having been withdrawn on 17.03.2016, whereas Criminal Appeal No, 524 of 2013, filed by Akram and Abdul Jabbar, was also dismissed by the learned High Court as having been withdrawn vide order dated 18.05.2016.
5. Briefly stated the facts of the case as set out in the FIR and in the private complaint by the complainant are that on the fateful day and time when the complainant and his wife were present on their agricultural land, the convict-petitioners along with their co-accused all armed with sotas reached there on a tractor FIAT and started ploughing the crop. When the complainant and his wife tried to restrain the accused, Abdul Jabbar gave a sota blow which landed on the right leg of complainant, Muhammad Akram gave a sota blow that landed on the ribs of the complainant and he fell down, Abdul Jabbar gave another sota blow on the nose of the complainant, petitioner Wajahat gave a sota blow which landed on his ribs. The complainant has alleged that afterwards Abdul Jabbar, Muhammad Akram and Wajahat gave sota blows on different parts of his body.
When Mst. Surayya Bibi, wife of complainant, tried to rescue him from the accused party, Abdul Jabbar, Wajahat and Muhammad Akram lifted her from her arms and raised lalkara to Nisar Ahmed petitioner to run the tractor over her, whereupon petitioner Nisar Ahmad ran over tractor over her body, as a result of which her ribs got fractured, her chest was damaged and she became seriously injured. On hearing the hue and cry, PWs Fakhar Hayat and Khalid Shah reached at the spot, witnessed the occurrence and rescued complainant and his wife. The accused fled away from the spot while brandishing their respective weapons.
6. We have heard the learned counsel for the convict-petitioners (in both the petitions), learned counsel for the complainant (petitioner in Crl. Petition No, 956-L of 2016), learned Law Officer at some length, and have perused the available record and also the impugned judgment of the learned High Court with their assistance.
7. It has been observed by us that the occurrence in this case (as per contents of FIR and Private Complaint) took place on 26.10.2010 at 1.30 p.m. However, the matter was reported to the police by complainant Sajwar Ahmed (PW1) through a written complaint (Ex.PA) on 27.10.2010, whereupon formal FIR (Ex.CW-8/A) was registered at 6.15 p.m. i,e, after one day, four hours and forty five minutes of the occurrence. The complainant has not been able to sufficiently explain the delay in lodging the FIR. Rather in his cross-examination he has stated that he along with his injured wife visited PS Gogera at about 1.30/2 PM on 26.10.2010 i,e, almost immediately after the occurrence but did not make any statement regarding the occurrence. The failure of complainant (PW1) to report the incident to the police when he visited the police station along with his injured wife (deceased Mst. Surayya Bibi) casts serious doubt on the veracity of his statement made before the learned trial Court.
8. The medical evidence, in this case, has been furnished by Dr. Nosheen (PW3), Dr. Akbar Ali (PW4) and Dr. Jawaria Tariq (PW5). Dr. Nosheen (PW3) medically examined Mst. Surayya Bibi (deceased) in injured condition on 26.10.2010 at 6.00 PM. She observed two injuries on her body. In her cross- examination, she stated that Mst. Surayya Bibi at the time of her medical examination was in full senses; that there was no visible mark of injury on the person of Mst. Surayya Bibi and that the ribs were fractured due to striking with any type of vehicle. Dr. Jawaria Tariq (PW5) conducted the postmortem examination on the dead body of Mst. Surayya Bibi (deceased) on 28.10.2010 at 2.15 a.m. (night). According to her the duration between injuries and death was approximately 131/2 hours and duration between death and postmortem examination was approximately eleven hours, which does not coincide with the time of occurrence mentioned in the Private Complaint. She (PW5) also admitted in her cross-examination that if a human body/person is run over by any heavy vehicle like tractor etc, there must be external injuries on that person, whereas neither she nor Dr. Nosheen (PW3) observed any external injury on the dead body of Mst. Surayya Bibi (deceased). The complainant Sajawal Ahmad (PW1) was medically examined by Dr. Akbar Ali (PW4) who observed three contusions on his body. Injury No,1 was declared as Shaja-e-Hashma, whereas injuries Nos. 2 and 3 were declared to be covered under section 337-L(2), P.P.C.. The medico-legal report (Ex.PD) of complainant is not in line with the number of blows he allegedly received at the hands of the accused. In the circumstances of the case, the medical evidence especially regarding the injuries allegedly sustained by Mst. Surraya Bibi (deceased) is not in line with the ocular account furnished by complainant Sajwar Ahmad (PW1) and Khalid Abbas (PW2).
9. For the foregoing reasons, we are of the considered view that the prosecution has not been able to prove its case against both the convict-petitioners beyond any reasonable doubt. Therefore, both the petitions are converted into appeals and the same are allowed. Consequently the impugned judgment of the learned High Court is set aside and both the petitioners Wajahat Ahmed and Nisar Ahmad are acquitted of the charges. Petitioner Nisar Ahmad shall be released forthwith, if not required to be detained in any other case.
Crl. Petition No, 956-L of 2016
10. Through this petition, the complainant-petitioner has assailed the impugned judgment dated 18.05.2016 passed by the learned High Court, whereby it converted the conviction of respondent No,1 Nisar Ahmed from section 302(b), P.P.C. To section 316, P.P.C. And reduced the sentence of imprisonment from life to 07 years. For the reasons given in Paras 7, 8 and 9 above, we do not find any merit in this petition, which is dismissed and leave to appeal refused.
11. Before parting with the judgment, we are constrained to observe that the learned Judge in Chambers of the High Court, has adopted a unique/novel approach in this case while deciding a criminal matter. The said approach is not in line with the settled principles of administration of criminal justice and the same cannot be endorsed/countenanced. The learned Judge has discussed the prosecution case in Paras 13, 14, 15 and 16 of the impugned judgment. The important/material defects noted by the learned Judge of the High Court in the prosecution case (in the above mentioned Paras) are as under:-
(i) In Para 13 of the impugned judgment, it has been concluded that the incident was not timely reported to the police. A portion of cross-examination has been reproduced by the learned Judge in the said Para of the impugned judgment wherein the complainant has admitted that he visited the concerned police station one day prior to the registration of the FIR along with his injured wife (who subsequently died), but did not make any statement regarding the occurrence.
(ii) In Para 13 of the impugned judgment, it has also been observed by the learned Judge that the injured Mst. Surayya Bibi (who subsequently died) was in her full senses at the time of her medical examination but she did not utter a single word to the Lady Doctor (PW3) for its incorporation in the relevant document. Even, an adverse inference under Article 129(g) of the Qanun-e-Shahadat Order, 1984 was drawn by the learned Judge against the prosecution. At the end of Para 13 of the impugned judgment, it has been observed:- "....From the facts narrated above it appears that statement of Mst. Suraya Bibi even if was recorded during her life time at Police Station Gogera, in District Headquarter Hospital, Okara or before Muhammad Akram Head Constable, who was accompanying her to the hospital, the same has not been brought on record by the prosecution being unfavourable to the prosecution case."
(iii) Regarding the ocular account furnished by complainant Sajwar Ahmad (PW1) and Khalid Abbas (PW2), the learned Judge in Para 14 has observed, "Evidence of Sajwar Ahmad complainant (PW1) keeping in view the Medico-Legal Certificate (Ex.PD) is full of exaggerations and same is the position regarding evidence of Khalid Abbas (PW2)."
(iv) In Para 15, the learned Judge in Chambers of the High Court has observed that eye-witnesses account failed to get necessary corroboration from medical evidence regarding Mst. Surayya Bibi (deceased). In this respect, the learned Judge has quoted the portions of cross-examination of the Doctor (PW5) who conducted the postmortem examination on the dead body of Mst. Surayya Bibi (deceased) and of Doctor (PW3) who medically examined Mst. Surayya Bibi (deceased) in injured condition.
12. Notwithstanding the afore-mentioned material defects noted by the learned Judge in Chambers of the High Court in the prosecution case, it is relevant to mention here that in the case in hand, both the petitioners Nisar Ahmad and Wajahat Ahmad and even their co-accused have denied their participation in the occurrence in their statements recorded under section 342, Code of Criminal Procedure. Even they have denied their presence at the place of occurrence. None of them made any statement under section 340(2), Code of Criminal Procedure. They did not produce any evidence in their defence except tendering a copy of statement (Ex. DA) recorded under section 164 Code of Criminal Procedure, made by one Munir Ahmad. It is the basic and established principle of administration of criminal justice that it is the prosecution which has to prove the guilt of the accused beyond any reasonable shadow of doubt. Once the Court entertains reasonable doubt/doubts in the prosecution case, its benefit must be extended to the accused not as a grace but as of right. Similarly, it is by now well settled that statement of an accused recorded under section 342, Code of Criminal Procedure has to be F rejected or accepted in toto. In the instant case, the crux of the statements of both the petitioners and even of their co- accused, recorded under section 342, Code of Criminal Procedure before the trial Court, as observed above, is simpliciter denial. Though they stated that it was one Munir Ahmad only who had participated in the occurrence but neither the said Munir Ahmad was accused before the Court nor his name was mentioned in the Private Complaint. In the circumstances of the case, it is not understandable as to how the learned Judge in Chambers of the High Court treated the instant case as a case of two versions particularly when both the convict-petitioners and their co-accused neither made statements on Oath under section 340(2), Code of Criminal Procedure nor led any evidence and denied their presence, at the place of occurrence.
13. The learned Judge in Chambers of the High Court while considering the prosecution case observed not once but on many occasions that there are factual discrepancies/exaggeration in the prosecution case as highlighted in Paras 11(i), (ii), (iii) & (iv) but still the learned Judge without any valid reason or justification while considering the statements of the convict-petitioners which are actually exculpatory in nature, went on to convict and sentence them. At the cost of reiteration, we may observe that this approach of the learned Judge is alien to the established/settled principles of administration of criminal justice.
14. The reliance of learned Judge on the case of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502) is also misconceived because the facts of that case and those of the instant case are totally different. Syed Ali Bepari (supra) was a case of two versions before the learned trial Court where both the sides i,e, complainant side and accused side were involved in a free fight and persons from both the sides got injured and consequently one from the accused side succumbed to the injury. However, in the instant case, none of the two petitioners or their co-accused (who faced the trial) received any injury during the occurrence.