Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 182 of 2015 filed by Tauseef Ahmad appellant and Criminal Appeal No. 171 of 2015 filed by Asmat Ullah appellant (against their convictions) as both above stated matters have arisen out of the same judgment dated 14.1.2015 passed by learned Judge ATC, Faisalabad according to which appellants were convicted and sentenced as under:--
(1) Tauseef Ahmad s/o Muhammad Hanif
1. He was convicted u/S. 336-B/34, PPC for causing burn injuries to Shabnam Batool injured and sentenced to imprisonment for life along with fine Rs. 1 million and in default thereof further undergo two years S.I.
2. He was also convicted u/S. 336-B/34, PPC for causing injuries to Mumtaz Bibi injured and sentenced to 14 years R.I along with fine Rs.1 million and in default thereof further undergo two years S.I.
3. He was convicted u/S. 336-B/34, PPC for causing burn injuries to Fakhar Abbas injured and sentenced to 14 years R.I along with fine Rs.1 million and in default thereof further undergo two years S.I.
4. He was convicted u/S. 336-B/34, PPC for lose the tip of nose of victim Shabnam Batool with acid and sentenced to 10 years R.I with `Arsh' which will be 1/2 of Diyat to be disbursed to Shabnam Batook, if realized, and in default thereof, he be kept in confinement till realization of the amount in accordance with law.
5. He was convicted u/S. 336-B/34, PPC for loose of right ear of the victim Shabnam Batool with acid and sentenced to 10 years R.I with `Arsh' which will be 1/2 of Diyat to be disbursed to Shabnam Batool, if realized, and in default thereof, he be kept in confinement till realization of the amount in accordance with law.
6. He was also convicted u/S. 7(c) of ATA 1997 read with Section 34, PPC and sentenced to imprisonment for life along with fine Rs.1 million and in default thereof further undergo two years R.I.
(ii) Asmat Ullah s/o Gul Sher alias Gulla
1. He was convicted u/S. 336-B/34, PPC for causing burn injuries to Shabnam Batool injured and sentenced to imprisonment for life along with fine Rs. 1 million and in default thereof further undergo two years S.I.
2. He was also convicted u/S. 336-B/34, PPC for causing injuries to Mumtaz Bibi injured and sentenced to 14 years R.I along with fine Rs.1 million and in default thereof further undergo two years S.I.
3. He was convicted u/S. 336-B/34, PPC for causing burn injuries to Fakhar Abbas injured and sentenced to 14 years R.I along with fine Rs.1 million and in default thereof further undergo two years S.I.
4. He was convicted u/S. 336-B/34, PPC for lose the tip of nose of victim Shabnam Batool with acid and sentenced to 10 years R.I with `Arsh' which will be 1/2 of Diyat to be disbursed to Shabnam Batool, if realized, and in default thereof, he be kept in confinement till realization of the amount in accordance with law.
5. He was convicted u/S. 336-B/34, PPC for loose of right ear of the victim Shabnam Batool with acid and sentenced to 10 years R.I with `Arsh' which will be 1/2 of Diyat to be disbursed to Shabnam Batool, if realized, and in default thereof, he be kept in confinement till realization of the amount in accordance with law.
6. He was also convicted u/S. 7 (c) of ATA 1997 red with Section 34, PPC and sentenced to imprisonment for life along with fine Rs.1 million and in default thereof further undergo two years R.I.
Whereas their co-accused namely Muhammad Waseem was acquitted by the learned trial Court.
All the sentences awarded to the appellants were ordered to be run concurrently along with benefit of Section 382-B, Cr.P.C. by the trial Court in case FIR No. 283 dated 20.9.2014 under Sections 336- B/34, PPC P.S Waryam, District Jhang.
2. The facts of the case have been stated by Sadaqat Hussain complainant (PW-5) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts: During the night of 19-20 September, 2014, at' about 1.00 a.m., the occurrence took place. 1 was sleeping in the house of my sister Mst. Mumtaz Bibi. At about 1.00 a.m., I heard the noise of the barking of the dogs. In the Courtyard, my sister Mumtaz Bibi, Bhanji Shabnum, Fakhar Abbas and Asad Abbas Bhanjas were also sleeping. The electric light was on. I woke up, with the others mentioned above. Two persons scaled over the wall and came into the house. They were Touseef and Asmat Ullah. Asmat Ullah had a bottle of white colour, with acid in it and a small knife in the other hand. Touseef Ahmad had a pistol in his hand. Touseef asked his companion to throw acid and the acid was thrown on Shabnum Bibi: I hurried got up and ran towards Asmat Ullah, but he aimed the pistol at me. The remaining two Mumtaz Bibi and Fakhar Abbas also injured due to acid burs and then both Asmat Ullah and Touseef returned after climbing over the wall. I chased them.
Muhammad Ramzan s/o Haq Nawaz also came over there. We chased both the accused persons, but could not catch them. During the chase, a motorcycle also followed us, with two persons on it.
One of them was having a sword, who brandished it and he was the accused Waseem (pointation made). We looked after the injured persons, on returning home.
The reason behind the occurrence was the dispute over `Rishtas'. The mother of Touseef visited our house, 3-4 times and demanded the hand of Shabnum Bibi for Asmat Ullah. Because of their character, we refused. Waseem and Touseef accused are related inter-se and Asmat Ullah is their friend.
At 5.30 p.m., I moved application Exh.P.A before the police, as I remained busy in the hospital, during the day. On the same day, i.e. 20.09.2014 moved another application Exh.P.A/2 before the police to nominate the accused Waaeem.
3. After registration of the case, investigation started, and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court.
4. Learned trial Court after observing legal formalities, provided, under, the Criminal Procedure Code framed the charge on 11.10.2014 against the appellants and his co-accused since acquitted under, Section 336-B read with Section 34, 337-A(i) read with Section 34 and under Section 7, of ATA 1997 to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Allah Ditta Nadeem H.C. PW-1, Dr. Sultan Muhammad Hussain SMO PW-2, Naeem Abbas constable PW3, Inayat Ali constable PW-4, Sadaqat Hussain PW-5, Fakhar Abbas PW-6, Shabnam Batool PW-8, Mumtaz Bibi PW-9, Ahmad Sajjad Inspector PW-10, Lady Dr. Syeda Zakia Rafiq WMO PW-11, Ijaz Hussain PW-12, whereas PWs namely Mohsin Abbas, Muhammad Abdullah constable and Mureed Abbas constable were given up by the prosecution being unnecessary and after tendering documentary evidence closed, the prosecution evidence.
6. Medical evidence was furnished by Dr. Sultan Muhammad Hussain SMO PW-2 and Lady Dr. Syeda Zakia Rafiq WMO PW-11 which is as under: Dr. Sultan Muhammad Hussain, SMO PW-2 stated that on 20.9.2014 he medically examined Fakhar Abbas injured and observed following injuries on his person: Injuries:
1. Superficial burn on the left side of the face in the area of 7 cm x 8 cm involving the left cheek, chin, and both lips, showing some areas of redness and some area was black".
NATURE OF INJURIES: The duration of injuries were, within 14/15 hours. Kind of weapon was compative acid burn.
Likewise, Lady Dr. Syeda Zakia, Rafiq WMO PW-11 stated that on 20.9.2014. she medically examined Miss Shabnum Bibi injured and observed following injuries on her person: The examinee came with history of spillage of chemical acid burn at 12:00 midnight. Examination of clothes, NIL.
GENERAL PHYSICAL EXAMINATION: Patient (Injured) was young girl, fully conscious and vitally stable at the time and space.
INJURIES:
1. A superficial burn an area whole face, right side, back and front of head, right side of neck, chest half area, upper part of breast, front of right arm upper part. Left arm upper part. Eyes closed, not opened.
2. Superficial burn left leg, middle part, near knee joint, 5 cm x 4 cm
3. Superficial burn an area right leg middle part, 3 cm x 2 cm.
The patient was referred to Eye Specialist for expert opinion Patient was reffered to Surgeon for expert opinion for disfiguration. All the injuries were KUO NATURE OF INJURIES.
The duration of injuries were within 14/15 hours. Kind of weapon was compative acid burn.
KEEPING IN A VIEW Accordingly to Dr. Tahir Rasool, Admin Registrar, Burn Unit, Nishtar Hospital, Multan, through letter No. 16489, the Injury No. 1 is declared as Itlaf-i-Silahiyyat-i-Udw' (disfigurement).
She further stated that on the same day at 2:15 p.m. she also medically examined Mst. Mumtaz Bibi injured and observed following injuries on her person: The examinee came with history of spillage of chemical acid burn at 1:00 a.m. midnight..
Examination of clothes, NIL GENERAL PHYSICAL EXAMINATION Patient (Injured) was fully conscious, well oriented and vitally stable at the time and space.
INJURIES.
1. Superficial burn 3 cm x 2 cm on left upper and lower part face
2. Superficial burn 5 cm x 3 cm left upper arm.
3. Superficial burn 3 cm x 2 cm upper part of left chest
4. SuperfiLal burn 5 cm x 4 cm right side of hip bone. ?
5. Superficial burn 3 cm x 2 cm forearm left side.
Injury No. 1 was declared as "Shujjah Khafifa", whereas Injuries No. 2, 3, 4, 5 declared 337-L (ii).
NATURE OF INJURIES: There was no possibility of fabrication. The duration of injuries were within 14/15 hours. Kind of weapon was combative acid burn".
7. On the other hand, statements of appellants Touseef Ahmad and Asmat Ullah and their co- accused (since acquitted) have been recorded under Section 342, Cr.P.C. who refuted the allegations so leveled against them. The appellants have not opted to appear as a witness under Section 340(2), Cr.P.C. and also did not produce any oral as well as documentary defence evidence and. in reply to question "why this case against you and why the PWs deposed against you?" Tauseef Ahmad appellant replied as under: "It is incorrect".
Likewise, in reply to question "why this case against you and why the PWs deposed against you?"
Asmat Ullah appellant replied as under: "I am resident of Bhakkar. I have no nexuses with this occurrence. I never visited Qasim Bharwana, in fact I spent same time as labourer in a poultry form situated in District Jhang. Touseef Ahmad co-accused was also working and residing near said poultry farm. I am innocent and have been en-roped in this case falsely."
8. After conclusion of the trial, learned trial Court while acquitting Muhammad Waseem, co- accused of the appellants, convicted Touseef Ahmad and Asmat Ullah appellants with above said sentences. Hence, these two appeals.
9. Learned counsel for the appellants have contended that:--
(i) the judgment of the trial Court dated 14.1.2015 is against law and facts on the file and is liable to the set-aside.
(ii)that the proseqution has failed to prove its case against the appellants/convicts as there are many major discrepancies in the statements of the PWs and, the learned trial Court has convicted the appellants on the basis of surmises and conjectures; (iii)it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law; (iv)lastly submitted that instant appeals may be accepted and the judgment of the trial Court dated 14.1.2015 may kindly be set aside and appellants/convicts, may be acquitted.
10.On the other hand, learned D.P.G assisted by learned counsel for the complainant has vehemently opposed the appeals and submitted that:
(i) the prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the appeals.
11.We have heard the learned counsel for the appellants as well as learned D.P.G assisted by learned counsel for the complainant and perused the record.
12.According to the FIR occurrence took place on 20.9.2014 at 1:00 am (night) in the house of Mst.
Mumtaz Bibi injured PW-9 who along with her real son Fakhar Abbas injured PW-6, her real daughter Shabnum Batool injured PW-8 and his brother Sadaqat Hussain PW-5 were present there.
13.The case of Tauseef Ahmad appellant is distinguishable from that of Asmat Ullah appellant, hence, firstly we would like to take up the case of Tauseef Ahmad appellant. Admittedly, Tauseef Ahmad appellant has not been attributed any acid burn on the persons of Fakhar Abbas injured PW-6, Shabnum Batool injured PW-8 and Mst. Mumtaz Bibi injured PW-9. According to the written application Ex.PA moved by Sadaqat Hussain complainant PW-5 for registration of the FIR Ex.PA/1, motive has not been attributed to Tauseef Ahmad appellant rather has been attributed to Asmat Ullah appellant (his co-accused). Relevant portion of the application Ex.PA is hereby reproduced: {{URDU TEXT}} The improved statement (examination-in-chief) of complainant Sadaqat Hussain PW-5 regarding motive that mother of Tauseef appellant had demanded hand of Shabnum Batool injured PW-8 for Asmat Ullah is not believable.
14.The only allegation against Tauseef Ahmad appellant is that he along with his co-accused Asmat Ullah appellant was present at the time of occurrence at the place of occurrence while armed with firearm weapon and raised lalkara to his co-accused Asmat Ullah appellant.
15.Ahmad Sajjad Inspector PW-10 stated in his statement that on 29.9.2014, Tauseef Ahmad appellant during interrogation disclosed and got recovered pistol P-1 which is inconsequential in the present case as there is no allegation against the appellant that he made any fire shot at the spot as stated by learned DPG.
16.Tauseef Ahmad appellant is not related to Asmat Ullah appellant (his co-accused). Tauseef Ahmad appellant has not been attributed any motive to commit the present occurrence.
Considering the facts of this case, we are of the view that prosecution has failed to prove the common intention between the appellant Tauseef Ullah and his co-accused Asmat Ullah appellant. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant in the present currence. Relianqe is placed on case titled Azhar Ali vs. The State (NLR 2011 Criminal 230). It is settled by now that for giving benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then the accused would be entitled for the same not as a matter of grace and concession but as of right.
Reliance is placed on case titled Muhammad Akram u. The State (2009 SCM R 230) in which Hn'ble Supreme Court of Pakistan has observed at page 236 as under: "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Peryez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
17.For the foregoing reasons, the Criminal Appeal No. 182 of 2015 filed by Tauseef Ahmad appellant is accepted and convictions and sentendces of the appellant (Tauseef Ahmad) awarded by learned trial Court through impugned judgment are set aside and the appellant Tauseef Ahmad is ordered to be acquitted of the charge in case FIR No. 283 dated 20.9.2014 under Section 336-B/34, PPC, P.S Waryam, District Jhang. He is directed to be released forthwith if not required in any other case.
18.So far as, Asmat Ullah appellant is concerned, Mst. Mumtaz Bibi injured PW-9 in whose house occurrence took place stated in her statement before the trial Court that in between the night of 19/20 September, 2014, she, her daughter Shabnam Batool injured. PW-8 were sleeping in one cot whereas his sons Fakhar Abbas injured PW-6 and Asad Abbas (not produced) were sleeping in another cot, her brother Sadaqat Hussain was sleeping little ahead from them. The bulb was on in the Courtyard. They woke up on the bark of dog. She further stated regarding role of Asmat Ullah appellant that he was found standing in the Courtyard and threw acid on her, her daughter Shabnam Batool injured PW-8 and her son Fakhar Abbas PW-6 as a result of which they also sustained acid burns.
19.Shabnam Batool injured PW-8 and Fakhar Abbas injured PW-6 have supported her evidence and further stated in their statements that Asmat Ullah appellant threw acid upon than as a result of which they and their mother Mst: Mumtaz Bibi injured PW-9 sustained acid burns. Sadaqat Hussain PW-5 complainant has also supported the evidence of above mentioned witnesses and further stated that the reasons behind the occurrence is that Asmat Ullah appellant demanded the hand of Shabnam Batool injured PW-8 but they refused. Muhammad Ramzan PW-7 has also supported the evidence of above mentioned witnesses.
All the above mentioned eye-witnesses including the injured persons have absolutely no grudge or to falsely implicate the appellant (Asmat Ullah) in the present case. They were cross-examined at length but their evidence could not be shaken during the process of cross-examination to the extent of appellant (Asmat Ullah). They corroborated one another on all material aspects of the case to the extent of appellant (Asmat Ullah). They have also established their presence at the time of occurrence at the place of occurrence with their stated, reasons. Their evidence is straightforward, trustworthy and confidence inspiring to the extent of Asmat Ullah appellant.
20.All the eye-witnesses have rightly identified Asmat Ullah appellant in the light of bulb well mentioned in the FIR who earlier demanded the hand of Shabnum Batool injured PW-8 but same was refused to him by the complainant party discussed earlier. There is no question of mis-identify of the appellant Asmat Ullah.
21.The argument of the learned counsel for the appellant that Tauseef Ahmad and Muhammad Waseem accused have been acquitted by disbelieving the evidence of above mentioned eye- witnesses and same evidence could not be believed to the extent of Asmat Ullah appellant has no substance because role of the Appellant is distinguishable from that of Tauseef Ahmad and Muhammad, Waseem acquitted accused. The law is settled by now that the maxim falsus in . uno falsus in omnibus' has no universal application and it is bounden duty of the Court to sift the grain from the chaff. Reliance is placed on case titled Elahi Bakhsh vs. Rabnawaz and another (2002 SCM R 1842).
22.Ahmad Sajjad PW-10 stated in his statement (examination-in-chief) that on 28.9.2014, Asmat Ullah appellant during interrogation disclosed and got recovered Knife P-4.
23. Medical evidence has been furnished by Dr. Sultan Muhammad Husain SMO (PW-2) and Lady Dr. Syeda Zakia Rafiq WMO (PW-11) whose details are as under: Dr. Sultan Muhammad Hussain SMO PW-2 who medically examined Fakhar Abbas injured PW-6 observed following injures on his person: "Patient (Injured) was young boy, fully conscious and well oriented at the time and space".
Injuries:-
1. Superficial burn on the, left side of the face in the area of 7 cm x 8 cm involving the left cheek, chin and both lips, showing some areas of redness and some area was black.
Nature of Injury The injury was declared as 337-A (i). The duration of injury was within 12 hours. Kind of weapon was combative acid burn".
Likewise, lady Dr. Syeda Zakia Rafiq WMO PW-11 who medically examined Mst. Shabnum Batool injured PW-8 and Mst. Mumtaz Bibi injured PW-9 observed as under:-- "On 20.09.2014, I was working as Women Medical Officer, District Headquarter Hospital, Jhang. I conducted medical examination of Miss Shabnum Bibi d/o Haq Nawaz, caste Dubb, aged 20 years Female, r/o Qaim Bharwana, Tehsil Shorkot, Police Station, Waryam Wala, District Jhang at 02:15 p.m. I found the following observations:-- The examinee came with history of spillage of chemical acid burn at 12:00 midnight.
Examination of clothes, NIL.
GENERAL PHYSICAL EXAMINATION: Patient (Injured) was young girl, fully conscious and vitally stable at the time and space.
INJURIES:
1. A superficial burn an area whole face, right side, back and front of head, right side of neck, chest half area, upper part of breast, front of right arm upper part. Left arm upper part. Eyes closed, not opened.
2. Superficial burn left leg, middle part, near knee joint, 5 cm x 4 cm. Superficial burn an area right leg middle part, 3 cm x 2 cm.
The patient was referred to Eye Specialist for expert opinion. Patient was referred to Surgeon for expert opinion for disfiguration.
All the injuries were KUO.
NATURE OF INJURIES: The duration of injuries were within 14/15 hours. Kind of weapon was comparative acid burn.
KEEPING IN A VIEW Accordingly to Dr. Tahir Rasool, Admin Registrar, Burn Unit, Nishtar Hospital, Multan, through Letter No. 16489, the Injury No. 1 is declared as Itlaf-i-Silahiyyat-i-Udw' (disfigurement).
On the same day, I conducted medical examination of Mst. Mumtaz Bibi w/o Haq Nawaz, caste Dubb, aged 45 years Female, r/o Qaim Bharwana, Tehsil Shorkot, Police Station Waryam Wala, District Jhang at 02:15 p.m. I found the following observations:-- The examinee came with history of spillage of chemical acid burn at 1:00 a.m. midnight.
Examination Of clothes, NIL.
GENERAL PHYSICAL EXAMINATION Patient (Injured) was fully conscious, well oriented and vitally stable at the time and space.
INJURIES:
1. Superficial burn 3 cm x 2 cm on left upper and lower part face.
2. Superficial burn 5 cm x 3 cm left upper arm.
3. Superficial burn 3 cm x 2 cm upper part of left chest.
4. Superficial burn 5 cm x 4 cm right side of hip bone.
5. Superficial burn 3 cm x 2 cm forearm left side.
Injury No. 1 was declared as "Shujjah Khafifa", whereas Injuries No. 2, 3, 4, 5 declared 337-L(ii).
NATURE OF INJURIES: There was no possibility of fabrication. The duration of injuries were within 14/15 hours. Kind of weapon was comparative acid burn".
Considering above, we are of the view that medical evidence has fully supported the ocular account furnished by above mentioned eye-witnesses.
24.Adverting to the defence plea of the appellant Asmat Ullah, he stated in answer to question "why this case against you and why the PWs made statements to involve you?" as under:-- "I am resident of Bhakkar. I have no nexuses with , this occurrence. I never visited Qasim Bharwana, in fact I spent same time as labourer in a poultry form situated in District Jhang. Touseef Ahmad co-accused was also working and residing near said poultry farm. I am innocent and have been en-roped in this case falsely".
The appellant has not opted to appear as a witness under Section 340(2), Cr.P.C. and also did not produce any oral as well as documentary defence evidence. Considering above, it is concluded that appellant Asmat Ullah has failed to prove his defence, plea and learned trial Court has rightly discarded his defence plea with sufficient reasons.
25.In view of the above discussion, we are of the view that prosecution has proved its case beyond shadow of doubt against the appellant (Asmat Ullah) through the evidence discussed earlier. Learned trial Court has rightly convicted him, hence, his convictions and sentences awarded by the learned trial Court 'through the impugned judgment are maintained. Resultantly, Criminal Appeal No. 171 of 2015 filed by Asmat Ullah appellant has no merits and is dismissed.