Mujahid Mustaqeem Ahmed, J.--Shaukat Hussain, (appellant in Cr. Appeal No, 35-J of 2014 hereinafter to be called the appellant) alongwith Bilal Hussain, irshad Hussain, Allah Bachaya, Mukhtiar Hussain and Ijaz Hussain, (acquitted co-accused/respondents in Cr. Appeal No, 63 of 2014) was tried by the learned Addl. Sessions Judge, Jatoi, Distt. Muzaffargarh in case F.I.R. No, 164 dated 24.4.2011 under Sections 302/337-A(ii)/337-L(II)/148/149, P.P.C. registered at Police Station Shehar Sultan, Distt. Muzaffargarh. Vide judgment dated 3.1.2014 the co-accused were acquitted whereas the appellant was convicted under Section 302(c), P.P.C. and sentenced to suffer 10 years R.I. with a fine of Rs, 10,000/- and in default thereof to further undergo simple imprisonment for a period of one month. Benefit of Section 382-D, Cr.P.C. was, however, granted to the appellant.
2. Being aggrieved of the impugned conviction and sentence Shaukat Hussain, convict has filed Cr.
Appeal No, 35-J of 2014. Feeling dissatisfied with the impugned judgment Muhammad Azam, complainant (hereinafter to be called the complainant) has also approached this Court by way of Cr. Appeal No, 63 of 2014 calling in question acquittal earned by co-accused of the appellant from learned trial Court. He has also filed Cr. Revision No, 62 of 2014 seeking enhancement of sentence awarded to the appellant. All these three inter connected matters are being disposed of together through this single judgment.
3. Occurrence in the present case took place on 24.4.2011 at 8.00 a.m. in the field of one Koroo Shah situated within the revenue limits of Mauza Kotla Laal Shah, Police Station Sherar Sultan, Muzaffargarh in which Hashim (deceased), Muhammad Azam, Sajjad Hussain (PWs. 4 and 5)
Mureed Hussain, Muhammad Haneef (given up) received injuries allegedly at the hands of the appellant, Irshad Hussain, Allah Bachaya, Mukhtar Hussain, Ijaz Hussain and Bilal Hussain (acquitted co-accused) out of whom Muhammad. Hashim succumbed to the injuries and the matter was reported by Muhammad Azam, complainant (PW.4) through complaint (Ex.P.E) on the basis of which formal F.I.R. (Ex.PC) was registered at Police Station Shehar Sultan of Distt.
Muzaffargarh on same day at 10.00 a.m. It may also be mentioned that the appellant, Allah Bachaya, Ijaz Hussain and Irshad Hussain of the accused party were also injured and they also got lodged cross-version (Ex.DG) with regard to the injuries suffered by them.
4. The prosecution story narrated by Muhammad Azam, complainant in the F.I.R. is that on 23.4.2011 a buffalo of the appellant intruded in the field of Muhammad Hashim and spoiled wheat crop which piqued him who halted the same and complained to the appellant but the lamentation annoyed the latter resulting in a brawl between the two. However, they were separated by the persons present nearby. On the next day at 8.00 a.m. Hashim (deceased), Mureed Hussain, Sajjad Hussain and Muhammad Hanif (PWs.) went to the field of Koroo shah to protest the matter were the accused party was reaping wheat crop. On seeing the complainant party, the accused party took stas and "Sairoo" (side of wooden cot) and attacked on complainant party. It was alleged that the appellant gave a Sota ("Sairoo") blow on left side of head of Hashim followed by another blow landing on his ceek. Irshad Hussain, Allah Bachaya, Mukhtair Hussain, Ijaz Hussain and Bilal Hussain (acquitted co-accused) alogwith an unknown person also belaboured Muhammad Azam, Sajjd Hussain (PWs. 4 and 5) Mureed Hussain, Muhmmad Hanif and Muhammad Hashim with their respective weapons. The parties were separated by the persons present at the spot. The complainantparty/injured persons while proceeding towards hospital met the police on the way when the complainant made statement (Ex.PE) to Abdul Ghaffar, Sub-Inspector (PW.9) which was sent to the police station for registration of F.I.R. and the injured were sent to the hospital where they were medically examined by the doctor. It may be mentioned that condition of Muhammad Hashim started deteriorating upon which he was referred to Nishtar Hospital but he died meanwhile.
5. It is to be noted that Irshad Hussain, one of the acquitted accused also appeared before the police on 24.4.2011 with complaint (Ex.DG) stating therein that on 23.4.2011 Muhammad Tahir son of the appellant was grazing his buffalo in the fields where Muhammad Azam, complainant emerged in anger and gave slaps to him. At that time the appellant also appeared and a scuffle took, place between the two, they were separated by the Allah Bachaya and Ijaz Hussain but the complainant went away with grudge in mind and on the next day at 8.00 am. when the appellant alongwith his co-accused/family members was reaping wheat crop in the field of Koroo Shah, the complainant Muhammad Hanif, Mureed Hussain, sajjad Hussain and Amin alongwith an unknown person attacked and gave injuries to him (Irshad Hussain ), Shaukat Hussain, Allah Bachaya and Ijaz Hussain and on intervention of persons present there, the mischief mongers left the spot.
6. On 24.4.2011 at 10.45 a.m. Dr. Muhammad Jamil, PW.8 conducted post-mortem examination on the dead body of Muhammad Hashim and observed following injuries:
1. Swelling on left and posterior side of skull 4 x 31/2 cm.
2. A depression on upper and outer side of lift check was seen.
On dissection of skull the doctor found liner fracture of left parietal bone. Hematoma on left and right parietal region was also seen. In the opinion of doctor both injuries were ante mortem and caused by blunt weapon. Injury No, 1 caused fracture of left parietal bone which resulted in death.
Probable time that elapsed between death and postmortem was approximately one hour and between injuries and death was three hours.
7. Although Muhammad Azam, Sajjad Hussain. PWs. 4 and 5 alongwith Mureed Hussain and Muhammad Hanif claimed to have been injured during the occurrence but latter two were given up by the prosecution whereas medico legal certificates of first mentioned two P.Ws. were not put to the doctor as such the same remained unproved.
8. This very doctor (PW.8) also medically examined Allah Bachaya, Ijaz Hussain and Irshad Hussain from the accused side and found four blunt weapon injuries on the person of Allah Bachaya. Ejaz Hussain, injured was having three blunt weapon injuries whereas four blunt weapon injuries were found on the person of Irshad Hussain and the doctor issued MLC Nos, 131/11 and 132/11 (Exs, DD and DE) with regard to former two injured persons.
9. Investigation in this case was carried out by Abdul Ghaffar, Sub-Inspector (PW.9) before whom the complainant and other injured PWs. appeared on 24.4.2011 immediately after the occurrence while going towards police station and the complainant made statement (Ex.PE) before him which was sent to the police station on the basis of which formal F.I.R. was registered. After sending the complaint (Ex.PE) to the police station the Sub-Inspector proceeded to the spot and conducted formal investigation. On the same day Irshad Hussain, Ejaz Hussain and Allah Bachaya of the accused party appeared before him in injured condition and after recording statement (Ex.DG) of Irshad Hussain, and preparation of injury statements of said accused persons the Investigating Officer referred them to R.H.C. for medical examination. On 12.5.2011 the investigator arrested all the accused persons including the appellant. During interrogation, the appellant made a disclosure on 15.5.2011 and then. led to the recovery of a "Sairoo" of cot (P.4) which was taken into possession through recovery memo. (Ex.PF). After completion of investigation, he challaned the accused to Court to face trial.
10. At commencement of trial, charge was framed against the accused persons to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as 9 witnesses out of whom Muhammad Azam, complainant PW.4 provided ocular account of the occurrence who was corroborated by Hafiz Mumtaz Ahmad and Sajjad Hussain, (PWs. 3 and 5) respectively. Dr. Muhammad Jamil, (PW.8) proved medical evidence whereas Abdul Ghaffar, Sub- Inspector (PW.9) proved investigation. Rest of the witnesses were formal in nature. At close of prosecution evidence, the accused persons . were examined under Section 342, Cr.P.C. They denied and dismissed each piece of prosecution evidence. To a question, "Why this case was registered against you?", the appellant replied as under: "On the fateful day I alongwith my relatives (brother-in-law and cousins) was busy in cutting wheat crop of Koroo Shah. At about 8.00 a.m. Muhammad Azam son of Abdul Ghani, Muhammad Hanif son of Abdul Ghani, Mureed Hussain and Sajjad Hussain sons of Karim Dad, Hashim son of Ghulam Ali, Ameer son of Rajab caste Bhambhan r/o Kotla Lal Shah and one known person came at the spot with sotas where we were busy in cutting wheat crop of Koroo Shah and attacked murderous assault upon us and caused injuries to Allah Bachaya, Ejaz and me etc. In the meanwhile Irshad Hussain s/o Ahmad Bukhsh came there for rescuing us. They also caused serious injuries to Irshad Hussain. On our hue and cry, people of the locality gathered there and rescued us. At that time, Hashim was alive and other members of complainant party having minor nature of injuries. The complainant party intentionally committed this occurrence after planning with their common intention and common object just to quench their thrust. One day prior to 23.4.2011, my son Muhammad Tahir were busy to graze their animals. One buffalo destroyed some crop of Muhammad Azam due to this, Muhammad Azam slapped Muhammad Tahir and at that time I came at the spot, some scuffle was took place. In the meanwhile Allah Bachaya and Ejaz sons of Ahmed Bukhsh came there and on our request/apology, matter as patched up but on the next date, they committed above said occurrence to achieve their nefarious design and falsely involved in this murder case."
The other co-accused also adopted somewhat similar plea taken by the appellant. The accused persons, however,. neither appeared in the witness-box under Section 340(2), Cr.P.C. nor produced any witness in defence. At conclusion of trial, the learned trial Court acquitted co-accused of the present appellant whereas convicted and sentenced the appellant as noted above.
11.Learned counsel for the appellant has contended that the prosecution has failed to prove its case against the appellant; that the complainant party was aggressor who had attacked and had given injuries to the appellant and his other companions/relatives but the P.Ws. have suppressed the same. Learned counsel submits that on the same evidence co-accused of the appellant have been acquitted whereas the appellant has been convicted as such the impugned judgment is not sustainable in the eye of law and the appellant deserves to be acquitted.
12.Conversely, learned Addl. Prosecutor General assisted by learned counsel for the complainant vehemently opposed the appeal and submitted that it was a daylight occurrence and the parties were previously known to each other thus there was no chance of mistaken identity; that the appellant and his co-accused were specifically nominated in the promptly lodged F.I.R. with specific role, they attacked at the complainant party and murdered an innocent person whereas injured others who were medically examined and the ocular account is fully corroborated by the medical evidence and that there was no previous or animosity to falsely implicate and depose against the appellant or the acquitted accused persons as such prayed for dismissal of the appeal of Shaukat Hussain and for acceptance of appeal and revision filed by the complainant.
13.We have heard learned counsel for the parties at length and have also gone through the record with their able assistance.
14.Muhammad Hashim, deceased of this case is paternal cousin of Muhammad Azam, complainant (PW.4) whereas Hafiz Mumtaz Ahmad, PW.3 is his (complainant's) maternal cousin.
On the other hand Shaukat Hussain, appellant and Bilal Hussain (acquitted accused) are real brothers. From the accused side Irshad Hussain, Ejaz Hussain, Allah Bachaya and Mukhtar Hussain (acquitted accused) are real brothers inter se.
15.In the present case, time, date and place of occurrence is admitted by both sides. Even the motive part is also almost admitted by both the parties.
16.From the complainant side Hashim, Muhammad Azam, Sajjad Hussain, Mureed Hussain and Muhammad Hanif received injures whereas from the accused side Allah Bachaya, Irshad Hussain, Ijaz Hussain and the appellant received injuries and were medically examined by the doctor. Thus participation of both the parties in the occurrence is also by and large admitted. However, with regard to mode and manner of occurrence, they are on different footing. As noted above, it was prosecution case that the accused party had injured the P.Ws.' and caused death of Hashim when they went to record protest whereas the accused party took up the plea that they were attacked by the complainant party. In order to know as to which party was aggressor versions of both the parties have to be looked into.
17.In order to prove prosecution case Muhammad Azam, complainant/PW.4 entered the witness- box and deposed that on 24.4.2011 at 8.00 a.m. Muhammad Hashim, Mureed Hussain, Sajjad Hussain and Muhammad Hanif went to the fields to protest regarding motive part of the occurrence to Ahmed Bakhsh and Koura. When the accused party saw them coming towards them (accused party) they attacked upon the complainant party. Shaukat, appellant gave two sota (Seeroo) blows on left side of head and left side of face/cheek of Muhammad Hashim. The complainant was present in his field wherefrom he rushed to the place of occurrence where Abdul Wahab and Hafiz Mumtaz also reached. Irshad Hussain, (acquitted accused) gave a sota blow landing on left leg of the complainant. In the meantime Khadim Hussain, Sabir and Muhammad Ameen also came there. The accused persons inflicted Sota blows on Mureed Hussain, Sajjad Hussain and Muhammad Hanif. Thereafter the people gathered there rescued them. He further deposed that on reaching the hospital condition of Hashim started deteriorating upon which he was referred to Nishtar Hospital but he died in the meanwhile. The prosecution also produced Hafiz Mumtaz and Sajjad Hussain, (PWs. 3 and 5) who deposed in line with the version narrated by the complainant.
18.It was plea of the accused party that on the fateful day and time when they were busy in the fields reaping wheat crop they were attacked by the complainant party who gave injuries to Allah Bachaya, Irshad Hassain, Ijaz Hussain (acquitted accused persons) and Shaukat, appellant and as a measure of self defence the complainant party also received injuries. Allah Bachaya, Irshad Hussain and Ijaz Hussain were produced by the police before medico legal examiner who found blunt weapon injuries on their person vide M.L.Cs. (detailed above). Thus the injuries on their, persons are admitted and proved on record. Although the accused party claimed that the complainant party was also having minor injuries but it was not clear as to how they got injuries.
None of the accused even disclosed as to how Hashim (deceased) sustained injuries.
19.As per prosecution version Muhammad Hashim, Muhammad Azam, Sajjad Hussain, Muhammad Hanif and Mureed Hussain PWs. Received injuries during the occurrence and they were medically examined by the doctor who issued medico legal certificates Bearing No, 126/11, 127/11, 128/11, 129/11 and 130/11. Out of these injured persons Hashim succumbed to the injuries whereas Muhammad Hanif and Mureed Hussain were not produced at trial. Although Muhammad Azam and Sajjad Hussain produced their medico legal certificates at trial but the same were not put to the doctor and remained unproved. Thus version of prosecution with regard to injuries suffered by Muhammad Azam, Sajjad Hussain, Mureed Hussain and Muhammad Hanif is not supported by medical evidence. Thus except for oral statements of the alleged injured eye- witnesses there is nothing on record which could establish presence of both the eye-witnesses at the spot. Although medical evidence is only supportive and not corroborative piece of evidence but absence of support shakes even presence of the P.Ws. at the spot. For the sake of arguments if it be presumed without conceding that both these witnesses had received injuries during the occurrence, the question is as to whether they are truthful witnesses or otherwise, because mere injuries on the body of the PWs. would not stamp them truthful witness especially when it has come on record that four persons from appellant side also got injuries during the occurrence out of whom injuries on at least three were proved by the doctor but these PWs. have not uttered even a single word as to how said four accused persons sustained injuries. In the circumstances, when the injured eye-witnesses suppressed the injuries on the person of the appellant/accused persons, coupled with other attending circumstances, they cannot be termed as trust worthy and reliable .witnesses. We are also mindful of the fact that on the same evidence four co-accused of the appellant have been acquitted.
20. Thus both the parties are suppressing true facts. If one goes by version of the defence that the complainant party had launched an attack then there was no reason that the complainant party consisting at least six persons would proceed from village to the fields but would not like to carry any weapon with them. Likewise if one considers that the appellant party intended to commit murder and grievous hurts to the opposite side there was no hurdle in their way to use sickles (with which they were reaping wheat crop) which were more effective weapon than to mere "Danda/Sotas". This circumstance lead us to infer that the complainant party armed with blunt weapons proceeded to the field to complain about conduct of Shaukat, appellant but the appellant party took it offensive as a result of which situation got aggravated at the spur of moment and both the sides grappled with each other and caused injuries to the other side in this melee. None of the participants intended to commit murder as nature of injuries would show that they were minor and trivial in nature, however, one injury caused to Hashim, to his misfortune, proved fatal. This inference of ours can be deduced from the fact that both sides received blunt weapon minor injuries. It was claim of both sides that the opposite party had caused "Danda/Sota" blows to the opponent. Even the "Sotas/Sairoo" got recovered by the appellant-party are of common nature and might thus be easily available in the field/place of occurrence. However, a question which crept into our minds is that if the complainant party had only intended to lodge protest there was no reason for five/six members to go at the place of occurrence. As per village usage and custom for lodging the protest, the burning issue (motive) should have been tabled before respectable/elders of village in "Punchait". Needless to mention that actions of men must be judged in the back-ground of the society to which they belonged. This circumstance reveals that the complainant party was mentally prepared to deal with every situation and as soon as situation aggravated at the spot both sides caused injuries to the other. Since the complainant 'party itself invited trouble and contributed to aggravate the situation, as such, appellant party was justified to react to save them and thus caused injuries to the complainant side and in any case it has not exceeded the right of self defence and resorted to minimum force, required to repel the attack of complainant party and to save their lives or grievous bodily hurts. As such the force used by the appellant party is proportionate to the apprehended danger. It is well settled that exercise of right of self defence cannot be measured by a golden scale and what required to measure is the conduct of the accused and that his presence at the place of occurrence should be bona fide, faultless and devoid of elements of mens rea; that there should be a danger to the life of the accused or of grievous bodily hurt or a genuine apprehension to that effect and situation should be such that the accused is left with no option of a safe exit and that the force used by the accused is proportionate to the apprehended danger. Reliance may be placed on Ghulam Farid v.
The State (2009 SCM R 929) and Zaheer Ahmad v. The State (PLD 2017 Lahore 59).
21. When the eye-witnesses of the occurrence are not trust worthy as they suppressed injuries on the body of the appellant/acquitted accused, the medical evidence does not, stricto senso, support injuries of the injured eye-witnesses and recovered weapon of offence is of common use, the prosecution version lacked meticulous proof and the truth remained shrouded by mystery, the plea taken by the accused party appears to be more plausible and we hold accordingly. There is no cavil to the proposition that where there are two versions of the case one in support of prosecution and other favouring the defence, then the version favouring the defence should take precedence. Reference may be made to case reported as Babar Naseem v. The State and another (2017 YLR Note 17). In given circumstances the learned trial Court was not justified to, convict the appellant under Section 302(c), P.P.C.
22.As a result of above discussions and observations Cr. Appeal No, 35-J of 2014 is accepted conviction and sentence awarded to Shaukat Hussain, appellant are set aside and he is acquitted of the charge. He is behind the bars and shall be set at liberty forthwith if not required to be detained in any other case.
22. Since Shaukat Hussain, convict has been acquitted of the charge, there is no question of enhancement of his sentence. Cr. Revision No, 62 of 2014 is, consequently, dismissed.
23.In sequel to above, we do not find any reason to interfere with the acquittal earned by respondents in Cr. Appeal No, 63 of 2014. Said appeal is, therefore, dismissed.