ASJAD JAVAID GHURAL, J.---Through this jail appeal, appellant Khadim Hussain has challenged the vires of judgment dated 02.10.2015 passed by the learned Additional Sessions Judge-I, Jampur/with the Power of Juvenile Court under the Juvenile Justice System Ordinance, 2000 in case FIR No,203 dated 03.08.2012, in respect of offences under Sections302/337-F(i)/34, P.P.C., registered at Police Station, Dajal District Rajanpur whereby he was convicted and sentenced as under:-- Under Section 302(b), P.P.C.
Imprisonment for life as Ta'zir for committing the murder of Talib Hussain deceased. He was directed to pay the compensation of Rs,100,000/- to the legal heirs of deceased under section 544- A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months.
II) Imprisonment for life as Ta'zir for committing the murder of Amir Bakhsh deceased. He was directed to pay the compensation of Rs,100,000/- to the legal heirs of deceased under section 544- A, Cr.P.C. and in default thereof to further undergo simple, imprisonment for six months.
He was held entitled to the benefit of section 382-B, Cr.P.C. and both the sentences were ordered to run concurrently.
The appellant was acquitted from the charge under section 337-F(i), P.P.C.
2. The complainant had filed aforementioned criminal revision against the impugned judgment seeking enhancement of sentence of the appellant to the capital punishment, which shall be disposed of through this single judgment.
3. Brief facts of the case as narrated in FIR (Ex.PL/1) registered on the complaint Ex.PL of Bakhtiar (PW-4) are that on 03.08.2012 at about 2:30 p.m. he along with his paternal uncle Ameer Bakhsh (deceased), cousin Talib Hussain (deceased) and his sister's son/injured Ghulam Nazik (PW-5) went to see the level of water in the water channel having their turn of water. In the meanwhile, Khadim (appellant) armed with Chura, Rasool Bakhsh (co-accused) armed with Chura, Muhammad alias Dadu (since acquitted) armed with stick and Shahid (since exonerated during the investigation) armed with stick, came there on motorcycles and rushed towards them by raising Lalkara. Khadim Hussain gave Chura blows on the left side of abdomen, right flank and below the armpit of Talib Hussain and the blood started oozing from the wounds. Ameer Baksh rushed forward to save his son whereupon Muhammad alias Daddu and Shahid caught hold of him and Khadim Hussain gave Chura blows on the abdomen of Ameer Baksh. On hearing noise Jafar and Bashkan attracted there. Rasool Bakhsh alias Charanka gave several Chura blows under the right armpit, right buttock and on the back of head of Ameer Bakhsh, who fell down on the ground. The complainant and Ghulam Nazik stepped forward to help Amir Bakhsh whereupon Khadim Hussain gave a Chura blow on the right hand of Ghulam Nazik. The accused persons fled away on their motorcycles from the spot with their weapons. They attended injured Talib Hussain and Ameer Bakhsh. Talib Hussain succumbed to the injuries at the spot. Ameer Bakhsh succumbed to the injuries on his way to hospital.
Motive behind the occurrence was stated to be a quarrel, which had taken place a month earlier between Talib Hussain and the accused persons.
4. After submission of challan under the Juvenile Justice System Ordinance 2000, the prosecution produced 10-witnesses to substantiate the charge against the appellant and his co-accused Muhammad alias Dadu (since acquitted) to which they did not plead guilty and claimed to be tried. Bakhtiar (PW-4), Ghulam Nazik (PW-5) and Bakhshan (PW-6) furnished the ocular account.
Shafqat Hussain, SI had conducted the investigation. The remaining witnesses were more or less formal in nature.
5. Dr. Muhammad Ramzan (PW-3) conducted post mortem examination on the dead body of deceased Talib Hussain and observed eight lacerated wounds on his person. All the injuries were ante-mortem and injuries Nos,2 to 6 were caused by sharp edged weapon, which proved to be fatal. Probable time between injuries and death was immediate and between death and post mortem 3-4 hours.
He also conducted the post mortem examination on the dead body of Amir Bakhsh and observed one lacerated and three incised wounds on his person. All the injuries were ante-mortem. Injury No,1 was caused by blunt weapon while other injuries were caused by sharp edged weapon and injuries Nos,2 and 3 were proved fatal. Probable time between injuries and death was immediate and between death and post mortem was 3-1/2 to 4-1/2 hours.
He also conducted the medico legal examination of injured Ghulam Nazik and observed an incised wound on his right forearm below the elbow joint.
6. The prosecution gave up Abdul Rasheed, Jamal and Ghulam Shabbir, the constables and Shah Ali, Mazar Khan and Hazari being unnecessary witnesses and closed its evidence by tendering the reports of Chemical Analyzer Ex.PU and Ex.PV and the reports of Forensic Science Agency Ex.PW and Ex.PX.
7. On completion of prosecution evidence, statements of the appellant and his co-accused were recorded under Section 342, Cr. P.C. wherein the entire prosecution evidence was put to them upon which they denied the charges leveled against them and professed their innocence. However, the appellant neither opted to appear under Section 340(2), Cr.P.C. in his own defence nor produced any witness to disprove the charge against him. In reply to question as case was registered and why the PWs have deposed against him, the appellant replied as under:-- "I am innocent. Actually, it was a blind murder, witnessed by none. I have been falsely involved in this case due to previous enmity, suspicion and party friction prevailing in the locality and also on the asking of our opponents. In fact, the actual facts of the occurrence have been kept secret by the complainant party being connived with the police to give it a colour of 302, P.P.C. The complainant party has twisted the facts of the case to suppress their part, played by them, prior to the occurrence and during the occurrence. In fact, both the deceased had ambushed themselves at the place of occurrence as I along with my father and younger brother had gone to offer Juma prayer in Dajal Town. After Juma prayer, I along with my father, my younger brother and one Kabul son of Khair caste Lund were coming back to our home, but in the way both the deceased came in front of us and stopped the motorcycle. Both the deceased started inflicting Soti blow on the person of my father only to disgrace and humiliate him in the Ilaqa due to previous grudge. After seeing my father under attack by both the deceased, I inflicted Churi blows on both the deceased to save my father and also under grave and sudden provocation, as I became infuriated and could not tolerate the insult of my father. Prior to this occurrence, a quarrel took place between me and Bakhtiar complainant about one month prior to the present occurrence and due to this reason, Bakhtiar was having grudge in this regard. Complainant Bakhtiar had extended threats of dire consequences in this regard that he would take revenge of his insult. I, in order to protect myself, keeping in view the threats of Bakhtiar used to keep Churi with me. My father was empty handed and he did not cause any injury to any person and he has falsely been involved in this case only to vengeance their grievance. I was arrested on the first day of the occurrence and was made to sit at police station along with my father but the local police being connived with complainant party did not get examined my father by doctor regarding injuries on his person, caused by the deceased persons. The local police showed our arrest on 12.08.2012 and made false recoveries on my behalf as well as on behalf of my father. I am innocent. PWs are interested witnesses and inimical towards me and for the said reason, they have deposed falsely against me."
8. The Trial Court, after hearing learned counsel for the parties, acquitted Muhammad alias Dadu co-accused and convicted and sentenced the appellant supra vide impugned judgment dated 02-10-2015. Hence, this appeal.
9. Learned counsel for the appellant has contended that there are material contradictions in the deposition of eye-witnessed; that they had no land to irrigate and their presence at the time and place of occurrence without any business is not believable; that the appellant and his father were coming on their motorcycle after offering Juma prayer when they were intercepted by both the deceased persons, who started inflicting blows with Soti upon father of the appellant to disgrace and humiliate him in the vicinity and on seeing them the appellant infuriated, became out of patience, took out his Churi, which was already with him and started inflicting Churi blows upon them to save his honour in grave and sudden provocation; that the case was not registered as it was happened at the place of occurrence; that there are material contradictions in the prosecution evidence with regard to the time, place and manner of the occurrence; that both the deceased had no purpose at the place of occurrence and the story narrated by the prosecution to be present there, has not been believed by the trial Court; that the recovery and motive could not be established by the prosecution and had not been believed by the trial Court; that there are material contradictions in the deposition of the PWs and inconsistent statements with regard to the medical evidence has seriously been taken up by the trial Court and the evidence adduced by the prosecution was not believed in toto; it was the duty of the prosecution to stand on its own legs; that the trial Court has erred in law while convicting the appellant merely relying on his statement recorded under Section 342 Cr.P.C.; it is well settled by now that an accused cannot be convicted on his own deposition if the prosecution fails to prove its case. It has been prayed that the appellant may be acquitted of the charge.
10.The opponents have defended the impugned judgment to the extent of conviction with the submission that the prosecution has proved its case beyond any shadow of reasonable doubt; that the appellant along with his co-accused while armed with Churi attacked upon the complainant party and inflicted many Churi blows to both the deceased as well as one Ghulam Nazik, the injured; that the minor discrepancies, if any, are not fatal to the prosecution when the eye-witnesses have corroborated each other on all material aspects of the case as to the role. weapon of offence, specific injuries and the place of occurrence; that it was a double murder case committed by the appellant and his co-accused in the day-light where no question of misidentification could arise at all; that co-accused Rasool Bakhsh had tried to shift his liability to the appellant although they both were equally responsible for committing the murder of Talib Hussain and Ameer Bakhsh; that the appellant himself has admitted his culpability in his statement recorded under Section 342, Cr.P.C. and thus, the trial Court was quite justified to pass the judgment of conviction.
11.Learned counsel for the petitioner/complainant further addled that the trial Court while believing the prosecution story and the admission made by respondent No,1/accused himself in his statement recorded under section 342, Cr.P.C., did not pass the capital sentence, which is against the law and facts of the case; that the lenient view taken by the trial Court is not justified, therefore, sentence of respondent No,1 may be enhanced to the capital punishment.
12.I have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant and have perused the record with their able assistance.
13.It is a case of two versions, one put by the prosecution and the second by the appellant in his statement recorded under section 342 Cr.P.C. The prosecution has mainly relied upon the deposition of the eye-witnesses furnished by complainant Bakhtiar (PW-4), injured Ghulam Nazik (PW-5) and Bakhshan (PW-6), who furnished ocular account with regard to the place of occurrence, manner of the occurrence, weapons of offence used during the occurrence, names of the culprits with the specific attribution of giving Churi blows to Talib Hussain, Amir Bakhsh deceased and Ghulam Nazik injured. Close relationship of all said eye-witnesses viz-aviz both the deceased is admitted one, Bakhtiar (PW-4) was nephew of Ameer Bakhsh and first cousin of Talib Hussain, Ghulam Nasik (PW-5) was son of nephew of Ameer Bakhsh and Bakhshan (PW-6) was maternal grand-son, of Ameer Bakhsh. As per crime report Ex.PL/1 and examination-in-chief furnished by Bakhtiar (PW-4), the complainant along with the eye-witnesses and the deceased persons had gone to the place of occurrence to see the level of water in the channel but it stood rebutted from his own deposition during cross-examination stating that neither he himself nor Muhammad Nazik (PW-5) and B Bakhshan (PW-6) have any piece of land near the water channel.
He also did not know that there was any sanctioned turn of water under Section 68 of the Canal and Drainage Act in respect of the place where this occurrence had taken place. He admitted that both the deceased persons had not irrigated their land on the day of occurrence and they only went there to see the level/quantity of the water. Another important factor to be noticed here is that he did not receive any injury during the occurrence for which he gave the explanation during cross-examination that he along with Nazik had tried to lift the injured when Nazik had received churi blow and due to fear they could not catch hold of the accused persons and that he was standing at a distance of 5/6 paces away from the accused party. Furthermore, he at first instance deposed that the clothes of the appellant and his co-accused were stained with blood but at same breath he deposed that their clothes were not stained with blood. The unnatural behavior of said witnesses like a spectator could not be believed, if he was present at the place of occurrence.
At one stage he deposed that both the deceased were irrigating their land but he himself denied during the course of cross-examination that he even did not know that the deceased had turn of water at that time.
Muhammad Nazik while appearing as PW-5 deposed almost in line with the complainant but during cross-examination he deposed that the police reached at the place of occurrence after 5/10 minutes after the departure of accused persons, police took the dead body of Talib and himself to hospital on official vehicle but On the way Ameer Bakhsh succumbed to the injuries. He completely narrated a different story to that of the complainant. The complainant had deposed that on seeing the police vehicle, the accused persons fled away; they, attended Talib Hussain but he had succumbed to the injuries at the spot; they took Amir Bakhsh towards hospital but on the way, he also succumbed to the injuries. The claim of Muhammad Nazik (PW-5) is that when he rushed forward to rescue Ameer Bakhsh, the appellant gave him churi blow. The medical expert Dr. Muhammad Ramzan while appearing as PW-3 deposed during cross-examination that injury No,1 on the person of Muhammad Nazik was on non-vital party of the body in the area of flashy as well as bony area, skin deep and the qualifications for self-suffered, friendly hands injury were available in this injury but he could not F declare this injury hundred percent a self-suffered or caused through friendly hand. Shafqat Hussain, SI (PW-7) had mentioned that he recorded injury statement of injured Ghulam Nazik at 3:30 p.m. and handed over him to Safdar Qurban, constable PW-2 for his medico legal examination but contrarily the medical expert deposed that he conducted the medico legal examination on 03.08.2012 at 3;00 p.m. The contradicted deposition of above said PW could not be believed in the circumstances.
Bakhshan (PW-6) was admittedly resident of 40/45 miles away from the place of occurrence and had no business whatsoever to be present at the time and place of occurrence where he did not own any piece of land. The house of both the deceased is situated at a distance of 1-1-1/2 kilometer away from the place of occurrence. Talib Hussain is maternal uncle and Ameer Bakhsh is maternal grand-father of Bakhshan (PW-6). He admitted during cross-examination that the complainant party was not irrigating the land at the time of occurrence. He also did not receive any injury during the occurrence.
14. The conduct of all the eyewitnesses seems to be doubtful, which is not acceptable to the man of ordinary prudence. Had they been present at the place of occurrence along with both the deceased, they would have tried to save the deceased persons and also tried to catch the accused especially when the accused were not armed with any fire arm weapon. The witnesses at least should have succeeded to stop the appellant and his co-accused from repeating the Churi blows to both the deceased.
15. The motive set out by the complainant in the crime report Ex.PL/1 is a month earlier quarrel between Talib Hussain and the appellant. During cross-examination, it goes admitted that said matter was not reported to the police, no quarrel had taken place in the intervening period, the complainant did not know with certainty the nature of that quarrel. There is no independent evaluation corroboration to establish the motive part of the occurrence, therefore, the motive was not believed by the trial Court and in my own independent evaluation the motive part has not been established.
The complainant deposed during cross-examination that the appellant was arrested after 1-3 days of the occurrence and he got recovered Churi on the same day but contrarily Shafqat Hussain, SI (PW-7) deposed that he arrested the appellant on 12.08.2012, who led to the recovery of Churi on 26.08.2012, which he took into possession vide recovery memo. Ex.PS as well as a motorcycle through recovery memo Ex.PR. This contradiction belies the recovery proceedings and the trial Court had rightly discarded the same.
17. Dr. Muhammad Ramzan PW-3 observed eight injuries on the person of Talib Hussain and four injuries on the person of Ameer Bakhsh, the deceased persons but as per oral version of the eye- witnesses, Talib Hussain had received four injuries at the hands of the appellant and Amir Bakhsh received one injury at the hands of the appellant and three injuries at the hands of co-accused Rasool Bakhsh with Churies. Injury No,1 on the person of Ameer Bakhsh was caused by blunt weapon as opined by the medical expert. The medical evidence does not lend any sort of support to the prosecution.
18.In his statement recorded under Section 342, Cr.P.C., the appellant had taken the plea of grave and sudden provocation stating that both the deceased had given Soti blows to his father to disgrace him for which he became infuriated and gave Churi blows on the person of both the deceased. It has been observed that the trial Court while discarding the prosecution evidence, convicted the appellant upon his statement recorded under section 342, Cr.P.C. but the law is quite settled by now that if the prosecution fails to prove its case against an accused person, the accused person is to be acquitted even if he had taken a plea and had admitted the killing of the deceased. I have sought guidance in this regard from case titled "Azhar lqbal v. The State (2013 SCM R 383)" wherein it has been held as under:-- "if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased.
The law is equally settled that the statement of an accused person recorded under Section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution' evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution."
19.Upon my own independent evaluation of the evidence available on record, it has been observed that the trial Court had rightly discarded the testimony of the prosecution witnesses, however erred in law by convicting the appellant merely on the basis of his admission/statement recorded under section 342, Cr.P.C. in contravention of aforementioned settled principle of law.
20.For what has been discussed above, the appeal in hand is allowed, impugned judgment dated 02.10.2015 is set aside and appellant Khadim Hussain is hereby acquitted of the charge. He is directed to be released forthwith, if not required to be detained in connection with any other criminal case. Criminal Revision No,188 of 2016 filed by the complainant for enhancement of sentence is without any merit as discussed above, the same stands dismissed in limine.