Anwaarul Haq Pannun, J.--Through this criminal appeal, the appellants have called in question the judgme nt dated 21.04.2014, passed by learned Addl. Sessions Judge, Mian Channu in case/ FIR No, 582/2012 dated 20.10.2012, in respect of offences under Sections 302, 34, PPC, registered at Police Station City Mian Channu, whereby while acquitting co-accused Muhammad Shabban, the appellants have been convicted under Section 302(c), PPC and sentenced to Rigorous imprisonment for a period of fourteen 14-years each. The benefit of Section 382-B, Cr .P.C. was extended to the convicts/appellants.
2. The prosecution's story unfolded through F.I.R (Ex.PF/2) lodged on the written complaint (Ex.PF) of Mst.
Haneefan Bibi (PW-6) is to the effect, that on 19.10.2012' at 8.00 p.m. Muhammad Ilyas son of the complainant, an auto-electrician by profession, on his way back to home after performing his duty, was forcibly stopped by the appellants, Shabban and, one unknown accused near the tube well of Zafar Arain and started giving him beating.
On hearing his hue and cry, the complainant along with Ashfaq, Haji Muhammad Ashraf and Muhammad Hussain immediately reached there and witnesses in the light of electric bulb, installed at the tube-well that the said accused persons while armed with Sotas were giving beating to her son, which resulted into causing of severe bodily injuries. On the intervention of the complainant and the PWs, the accused while brandishing their weapons, succeeded in making their escape good. The injured was shifted to THQ Hospital Mianchannu through local police where he succumbed to the injuries. The motive behind the occurrence is stated to be an exchange of hot words, over a dispute of passage, which took place few days earlier , between the deceased and the accused.
3. The investigation encapsulated into submission of report under Section 173, Cr.P.C., the learned trial Judge after taking cognizance, supplied the requisite copies of the statements under Section 265(c), Cr.P.C., charge sheeted the accused, to which they denied while professing their innocence and claimed trial. The learned trial Judge ordered the prosecution to produce its evidence for establishing the charge. The prosecution has produced as many as nine(09) witnesses besides tendering report of Serologist (Ex.PO) in evidence. The medical evidence in the case, has been furnished by Dr. Muha mmad Akbar , CMO of THQ Hospital, Mian Channu (PW-1), who deposed that he had conducted medical examination of Muhammad Ilyas son of the complainant in injured condition on 19.10.2012 at 10.45 p.m, who was brought under the surveillance of Muhammad Azhar 737/C. PW-1 proved the MLC of the injured Muhammad. Ilyas Ex.PB and pictorial diagram of injuries Ex.PB/1. He referred the injured to Nishtar Hospital, Multan for expert opinion and management. After the death of said Muhammad Ilyas, the doctor (PW-1) conducted post-mortem examination over the dead body of the deceased on 20.10.2012 at 9.00 a.m. and observed the following injuries: Injury No, 1: Large contusion mark involving whole of the right shoulder . Injury No, 2: Large contusion mark involving whole of the left shoulder . Injury No, 3: Large contusion mark involving whole of the back of right chest.
Injury No, 4: Large contusion mark involving whole of the back of left chest.
Injury No, 5: Large contusion mark involving whole of the outer side and back of right arm.
Injury No, 6: Large contusion mark involving whole of front of outer side of left arm.
Injury No, 7: Multiple contusion marks on back of right forearm.
Injury No, 8: Multiple contusion marks on back of left forearm.
Injury No, 9: Multiple contusion marks on back.
Injury No, 10: Multiple contusion marks on back of right forearm.
Injury No, 1 1: Multiple contusion marks on front and outer side of left thigh.
Injury No, 12: Multiple contusion marks on front and outer side of right leg.
Injury No, 13: Multiple contusion marks on front and outer side of left leg.
Injury No, 14: Multiple contusion mark involving whole of right buttock.
Injury No, 15: Large contusion mark involving whole of left buttock.
Injury No, 16: Lacerated wound 02 cm x 0.5 cm x bone note exposed on top of head in its left half.
Injury No, 17: Lacerated wound 01 cm x 0.5 cm x bone note exposed. 2 cm below and outer side of left eye.
Injury No, 18: Lacerated wound 02 cm x 0.5 cm x skin deep, on front of left little finger .
Opinion: According to PW-1, the cause of death in this case was vaso vagal inhabitation and crush syndrome resulted by all the injuries collectively inflicted by some blunt weapon. All the injuries were ante-mortem and were sufficient to cause the death in ordinary course of nature. The probable time between injury and death was about six to seven hours while between death and post-mo rtem was six to eight hours. After post-mortem examination, the doctor handed over the stitched dead body , last worn clothes police papers and PMR No, 34/2012 dated 20.10.2012 to Azhar Hussain 773/C. Post mortem report is Ex.PE with diagram with cut liners of the body of deceased is Ex.PE/1 which is in his hands and bears his signatures. Injury statement of the deceased Ilyas is Ex.PC whereas inquest report is Ex.PD.
4. The ocular account in this, case has been furnished by Mst. Haneefan Bibi, comp lainant (PW-2) and eye-witness Muhammad Ashfaq (PW-3). Nusrat Hussain, SI/Investigating Officer has appeared as PW-9. Whereas, Mushtaq Ahmad s/o Shair Muhammad, Ashraf s/o Rehmat Ali and Muhammad Hussain s/o Inayat Ali were given up being unnecessary by learned Prosecutor . Rest of the witnesses in the peculiar facts of this case are not of much importance, therefore, in order to avoid unnecessary detail, their evidence is not being discussed. Needless to reiterate the documents tendered in evidence.
5. When examined under Section 342, Cr.P.C., the appellants refuted the incriminating material, produced in evidence against them, while replying the question as to why this case against them and why the prosecution witnesses had deposed against them, Dur Muhammad, appellant replied as follows:.
"On 19.10.2012 at about 8.00 p.m. I was irrigating my land with tubewell water and my son Shahid, my co-accused was going back to his home after serving meal to me. I heard the noise of my daughter Mst. Farzana Bibi, coming from my house. She was using the words "Bachao, Bachao". I immediately rushed to my house and saw one person with muffled face was standing outside the house and another person with muffled face, was grappling with my daughter in the Courtyard of the house near a room. My daughter was fallen on the ground and the person was lying upon her. My son Shahid co-accused, was giving kicks and fists blow on the back of said persons. I tried to save my daughter , meanwhile, I also started giving slaps and fist blows to said person who left the Courtyard of the house of scaling over the outer wall of the house. We followed him, some persons who had already gathered outside the house after hearing the noise, caught the said person and they also started to beat him and when his face was un-muffled, it was found that he was Muhammad Ilyas deceased who had been living with his parents at a bheni situated at a distance of 03/4-kanals from our house. I immediately called his parents from his house but it came to my knowledge that his mother and brother Ashfaq along with other family members of said Ilyas, fwd gone to Chak No, 95/151, to attend the marriage ceremony of their relatives and were not at home at that time. I then informed the police, the police arrived at the spot and took Ilyas (deceased) alive to police station. Thereafter , having gained the knowledge of the occurrence, the complainant and the PWs came back from Chak No, 95/151 and with the consultation of Mr. Shahid Rafique, Advocate, got this case registered against me and my co-accused by twisting the real facts. Muhammad Ilyas had entered into our house with bad intention to abduct, or to commit rape or to outrage the modesty of my daughter Mst. Farzana Bibi, with the help of a person who was standing outside the house who later on ran away from the place of occurrence. Muhammad Shahan, my co-accused, was not residing at our bhani and was not present at the spot at that time. He has been involved in this case being my real uncle with ulterior motive to involve whole family in this case. Neither I nor my son Shahid inflicted injuries to the deceased with sotas. The deceased might have received injuries when he left the Courtyard by scaling over the wall and while falling on waste material like bricks which were lying outside the wall and some of the injuries through the hands of the persons who were standing outside the house and caught the deceased outside the house near the door. PWs being close relative of deceased have deposed against me and my co-accused to secure our conviction by concocting a false version against me and my co-accused persons. The person with muffled face, standing outside the house was one of the companions of Muhammad Ilyas who ran away from there.
During the investigation, my version and the version of my father was also found correct. Six/seven persons also appeared before the I.O. in support of our version. I and my co- accused are innocent. I was arrested by the police on the following day of occurrence along with Shahid and Shaban accused person and police kept us in wrongful confinement till I was produced before the Court of Judl. Magistrate. I along with my son Shahid caused injuries to Ilyas under grave and sudden provocatio n, inside my house when he was grappling with my daughter by putting her on the ground."
In reply to the said question, Shahid Hussain, appellant deposed as under: "On 19.10.2012 at about 8.00 p.m. my father Dur Muhammad co-accused was irrigating his land with tubewell water and I went there to serve meal to him. After serving meal, I was corning back to my home. When I reached near my house I heard the noise of my sister Mst. Farzana Bibi, coming from my house, she was using the words "Bachao, Bachao". My father Dur Muhammad also heard the noise in the fields who was at a distance of 04/5- acres from the house. My father also attracted to the spot. I immediately rushed to my house and saw one unknown person with muffled face was standing outside the house and another person, was grappling with my sister in the Courtyard of the house near a room. My sister was fallen on the ground and the person was lying upon her. I tried to save my sister , meanwhile my father Dur Muhammad also reached in the Courtyard of the house. I and my father gave slaps and fist blows to said person who left the Courtyard of the house by scaling over the outer wall of the house. We followed him, some person who had already gathered outside the house after hearing the noise, caught the said person and they also started to beat him and when his face was un-muffled, it was found that he was Muhammad Ilyas deceased, who had been living with his parents at a bheni situated at a distance of 03/4-kanals from our house. My father immediately called his parents from his house but we came to know that his mother and brother Ash fag along with other family members had gone to Chak No, 95/ 151, to attend the marriage ceremony of their relatives and were not at home at that time. My father then informed the police, the police arrived at the spot and took Ilyas (deceased) alive to police station. Thereafter , having gained the knowledge of the occurrence, the complainant and the PWs came back from Chak No, 95/51 and with the consultation of Mr. Shahid Rafique, Advocate, got this case registered against me and my co-accused by twisting the real facts. Muhammad Ilyas had entered into our house with bad intention to abduct, or to commit rape or to outrage the modesty of my sister Mst. Farzana Bibi, with the help of a person who was standing outside the house who later on ran away from the place of occurrence. Muhammad Shaban, my co-accused, was not residing at our bhani and was not present at the spot at that time. He has been involved in this case being my real uncle with ulterior motive to involve whole family in this case. Neither I nor my father inflicted injuries to the deceased with sotas. The deceased might have received injuries when he left the Courtyard by scaling over the wall and while falling on waste material like bricks which were lying outside the wall and some of the injuries at the hands of the persons who were standing outside the house and caught the deceased outside the house near the door. PWs being close relative of deceased have deposed against me and my co-accused-to secure our conviction by concocting a false version against me and my co-accused persons. The person with muffled face, standing outside the house was one of the companions of Muhammad Ilyas who ran away from there. During the investigation, my version and the version of my father was also found correct. Six/seven persons also appeared before the I.O. in support of our version. I am my co-accused are innocent. I was arrested by the police on the following day of occurrence along with Dur Muhammad and Shaban accused person and police kept us in wrongful confinement, till I was produced before the Court of Judl.
Magistrate. I along with my father Dur Muhammad caused some of the injuries to Ilyas under grave and sudden provocation, inside my house when he was grappling with my sister by putting her on the ground."
6. Learned trial Court, on conclusion of the trial, proceeded to convict the appellants as aforesaid, hence this appeal.
7. Heard. Record perused.
8. At the very outset, it is observed that the learned trial Judge in para No, 19 of the impugned judgment has held as under:-- "It has been found that the testimonies of PW-2 and PW-3 with regard to their presence are not confidence inspiring and the defence version rings true to the mind of the Court that these witnesses had gone to Chak No, 95/15L to attend a marriage ceremony and after gaining knowledge of the occurrence, they arrived at the Police Station and got registered the case on the basis of legal advice furnished by Shahid Rajique, Advocate."
For coming to the above quoted conclusion, the learned trial Judge has assigned at least five reasons including (i) non-making of any effort by the complainant and other witnesses to save the skin of the deceased from the accused, (ii) non-association of any of the PWs with Muhammad Ilyas deceased, when he, in injured condition, got recorded Rapt Exh.PM/3 at Police Station at 9:55 p.m. and non-mentioning the names of any of the said PWs in the said Rapt, (iii) improvements made by the alleged eye-witnesses PW-2 and PW-3 in their statements, (iv) contradictions in the statements of PWs and (v) the lodging of F.I.R. on the basis of legal advice rendered by the legal expert i,e, an Advocate.
The learned trial Judge in para 21 of the impugned judgment has proceeded to hold that "last but not the least, the prosecution completely failed to prove the motive of the occurrence set out in the FIR. The testimonies of PW-2 and PW-3 and even their presence at the place of occurrence at the time of occurrence, have been completely disbelieved for the reasons recorded supra ". The finding on the motive part is also recorded in the same paragraph i,e, 21 of the judgment. It was further held in the same para that "in the light of thread bare scanning of the evidence brought on record discussed above, it is held that the version of the complainant, prosecution about the ocular account of the occurrence furnished by PW-2 and PW-3 is disbelieved and discarded ". The learned trial Court, while disbelieving the prosecution version, however , has proceeded to hold that "the defence version taken by the accused facing the trial is therefore believed as a result of which the presen ce and participation of accused Shabban in the occurrence is not proved ". It has further been observed that "the murder of Muhammad Ilyas deceased was not a premeditated murder . The occurrence took place on the spur of moment. The accused Dur Muhammad and Shahid Hussain inflicted injuries to the deceased under grave and sudden provocation when the deceased Muhammad Ilyas was laying over Mst. Farzana Bibi, the daughter of accused Dur Muhammad and real sister of accused Shahid Hussain. As per medical evidence produced by the prosecution itself, the injuries inflicted by the accused Dur Muhammad and Shahid Hussain to Muhammad Ilyas were not sufficient to cause death in the ordinary course of nature. PW-1 admitte d this fact in the cross-examination. It is therefore borne out from the evidence available on record that the accused Dur Muhammad and Shahid Hussain did not intend to cause the death of deceased Muhammad Ilyas, however , his death was the direct consequence of the injuries caused by them ." The learned trial Court despite coming to the above quoted conclusion still had proceeded to convict the appellants by. Observing that "accused Dur Muhammad and Shahid Hussain are therefore, proved to be guilty of Qatal-e-Amd of deceased Muhammad Ilyas, but it was neither a premeditated murder nor an honour killing stricto senso therefore, the case of the accused Dur Muhammad and Shahid Hussain is covered by Section 302(c), PPC and not 302(b), PPC. The charge against the accused Dur Muhammad and Shahid Hussain u/S. 302(c), PPC read with Section 34, PPC, therefore, stands proved. Accordingly , the accused Dur Muhammad and Shahid Hussain are convicted u/S. 302(c), PPC and sentenced to Rigorous Imprisonment for a period of fourteen 14-years each. The benefit of Section 382-B of Cr.P.C. is also given to both the convicts. Since the deceased was not "Masoom- udDam", therefore, I am not inclined to award compensation to the legal heirs of deceased u/S. 544, Cr .P.C."
9. I myself have gone through the evidence of prosecution witnesses. Neither the complainant nor any other PWs named in the F.I.R., who were greater in number than the accused persons, armed with only Sotas and not any fire-arm weapon, had made any effort to interfere, in order to save the skin of the deceased, so it can easily be concluded that the conduct of the nearer and dearer of deceased i,e, PWs was not natural. Such a strange and unbelievable conduct of the said eye-witn esses is against the natural and ordinary human conduct as complainant Mst. Hanifan Bibi (PW-2) and Muhamm ad Ashfaq (PW-3) during cross-examination stated that the accused persons dragged deceased Ilyas for about 2/3 minutes and continued to give him beating for a period of 10/15 minutes, but they remained standing at a distance of 22 feet towards east to the place of occurrence, Haji Ashraf PW also reached there, when the accused were beating the deceased. She also stated that "the accused were not carrying any fire-arm weapons, we tried to save my son from the clutches of the accused, but they pushed us back ". She candidly stated in her statement that "we were four persons, while accused were three persons, we did not beat the accused persons ", thus, this Court is not inclined to accept their testimonies. I, therefore, hold that the presence of both the acclaimed eye-witn esses at the place of occurrence at the relevant time, is not free from doubt. My this view find support from the dictum laid down in case titled "Liaqat Ali versus The State " (2008 SCMR 95), wherein it has been held as under: "Having heard learned counsel for the parties and having gone through the evidence on record, we note that although P.W who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross-examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaqat Ali had threatened them therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaquat Ali was not armed with a fire-arm which could have scared the witnesses away . He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful.
10. It has also been noticed that the F.LR. had been lodged by the complainant on the basis of legal advice rendered by a legal expert i,e, an Advocate. Complainant Mst. Hanifan Bibi (PW-2) has stated that "I got drafted the application Exh.DA from an Advocate named Shahid ". She further deposed that "Exh.PF is the same application, which was drafted by Shahid Wakeel in the Police Station and I thumb marked the same, Shahid Wakeel was called in the police station".
The above quoted portion of cross-examination of the complainant (PW-2) clearly indicates that the F.I.R. has been lodged while procuring legal advice, after consulting a legal brain, in the manners be suiting to the complainant, therefore, such F.I.R., which has been lodged after consultation and deliberation is always seen with suspicious eyes as its veracity is deemed to be at stake being result of consultation and deliberations. It may be called an adulterated first version of the complainant about the occurrence, hence cannot be relied upon for the safe administration of justice.
11. The motive had also been disbelieved by the learned trial Judge on a valid reason due to non-availability of evidence on record, which was set out in the F.I.R. and has been dubbed to bald assertion made by the complainant's side, particularly in absence of any details regarding date, time and place of the motive occurrence, especially when there was also no pending litigation between the parties regarding the dispute of any passage.
12. So far as the recoveries are concerne d, the same were of ordinary sotas, alleg edly effected on pointing out of the appellants, which can easily be planted upon the accused. More-over , when the recovery memos have been shown to be attested by the same PWs, who were named in the F.LR., as eye-wi tnesses and whose presence at the spot has been disbelieved by the Court, therefore, the recovery had also rendered no corroboration to the prosecution case.
13. The time of occurrence in this case is undisputedly 8.00 p.m. night. The place of occurrence is also undisputedly quite near the house of the appellants. According to post-mortem report (Exh.PE) Muhammad Ilyas deceased was a young man aged about 30 years. Dr. Muhammad Akbar , CMO (PW-1) opined that the cause of death in this case is vaso vagal inhibition and crush syndrome resulted by all the injuries collectively inflicted by some blunt weapon and all the injuries were ante-mortem and were sufficient to cause the death in ordinary course of nature. In cross-examination, however , he deposed that as per post-mortem examination (Exh.PE), there was no fracture of any bone of deceased Ilyas nor there was apparently any serious injury . He admitted it to be correct that from the apparent, the nature of injuries, same may fall under Section 337-A(i) or 337-F(i) or 337-L(ii), PPC and from the apparent nature of injuries, such like injuries do not cause the death in ordinary course of life. Muhammad Nusrat SI/Investigating Officer (PW-9) deposed in cross-examination that "the first version of accused Dur Muhammad and Shahid accused before them was that daughters of accused Dur Muhammad were young ehough and the deceased Ilyas had evil intentions against them and he forbade him from visiting his house but he continued to stand in front of his house in routine and that on 19.10.12 at about 08/9.00 p.m. the deceased Ilyas entered into their home by leaping over the wall and went inside the room where Mst. Farzana daughter of Dur Muhammad accused was sleeping, and that on seeing him they tried to apprehend him and during the resistance by him, he got injured. It is correct that during my investigation on 31.10.12, the above said first version of the accused was found correct ". The above quoted portion of statement of Muhammad Nusrat SI/I.O (PW-9) lends support to prove that the version adopted by the accused in the facts of the case, was more plausible and probable as compared to the case of the prosec ution. Surprisingly the learned trial Judge after coming to the above conclusion, on the basis of very valid reasons, while rejecting the prosecution's version, has illegally proceeded to convict the appellants under Section 302(c), PPC, on the basis of their statements recorded under Section 342, Cr.P.C. When the prosecution has been found to be failing in its basic responsibilit y for proving the charge against the ,appellants, they could not have been convicted on the basis of their plea, which under the law either should have been rejected or accepted in its totality , as raising of any plea by the accused does not absolve the prosecution from its actual duty of proving its case. It is trite law that when the prosecution fails in establishing is case beyond reasonable shadow of doubt, the accused is to be acquitted, even if he had taken a plea and thereby admitted the killing of the deceased. Reference is made to the case reported as "Azhar Iqbal versus The State "
(2013 SCMR 383 ) wherein it has been held as under: "It has straightaway been observed by us that both the learned Courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under Section 342, Cr.P.C. wherein he had advanced a plea of grave and sudden provocation.
It had not been appreciated by the learned Courts below that the law is quite settled by now that 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. A reference in this respect may be made to the case of Waqar Ahmed v . Shaukat Ali and others (2006 SCMR 1 139)"
Reference is also made to case reported as "Javaid versus The State" (PLD 1994 Supreme Court 679), wherein it has been held as under: "Even if defence plea is raised, burden on prosecution to prove the case beyond doubt is never lessened or lightened and remains the same and accused is always entitled to benefit of doubt if the prosecution case is not proved by satisfactory evidence."
This View is also fortified from the case reported as "Nadeem-ul-Haq Khan and others versus The State" (1985 SCMR 510), wherein it has been held that: "Defence of accused being plausible making prosecution case against them doubtful-Accused not found to have exceeded right of private defence of their person having received numerous and serious injuries--Conviction and sentence of accused was set aside in circumstances.
In a criminal case, it is the duty of the. Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt."
14. For what has been discussed hereinabove, it is held that the prosecution has failed in its basic duty of proving its case beyond any shadow of reasonable doubt and the learned trial Court has proceeded illegally in passing the conviction and sentence against the appellants through impugned judgment. Therefore, by allowing this appeal, the conviction and sentence of the appellants Dur Muhammad and Shahid Hussain are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They are direct ed to be released forthwith from jail, if not required to be detained in connection with any other criminal case.