Anwaarul Haq Pannun J:- Rashid Hussain and Shahid Hussain sons of Munawwar Hussain, both Malik by caste, residents of Shamas Pura, Mian Channu, District Khanewal, the appellants were involved in case FIR No.476/2015 dated 11.10.2015, offence under Sections 496-A, 380, 324, 34 PPC, subsequently offences under sections 337A(ii), 337F(ii), 365-B, 376, PPC were added, registered with Police Station City Mian Channu, District Khanewal. They were tried by learned Additional Sessions Judge, Mian Channu. The learned trial court seized with the matter vide its judgment dated 05.12.2017 while acquitting co-accused namely Munawwar Hussain and Muhammad Rauf of the charge by giving them the benefit of doubt, convicted and sentenced the appellants in the following terms:- Name of the appellant Conviction/sentence Rashid Hussain Under Section 324/34, PPC, sentenced andto undergo R.I. for five years each with payment of fine Rs.10,000/- each and in Shahid Hussain default whereof to further undergo S.I.
(appellants) for four months each. Under Section 337A(ii)/34, PPC, jointly directed to pay Arsh on five counts to the legal heirs of injured PW Mst. Rafia Begum (since died subsequently) which shall be 5% of the total amount of Diyat for the year, 2015-2016 which in total was Rs.4,20,067.5 Under Section 337F(ii)/34, PPC, jointly directed to pay Rs.10,000/- as Daman to the legal heirs of injured PW Mst. Rafia Begum (since died subsequently). They were also extended the benefit of Section 382-B Cr .P.C. However , both the appellants were acquitted of the charge under section 376 and 365-B PPC.
2. Feeling aggrieved by the judgment of the learned trial court, the appellants Rash id Hussain and Shahid Hussain have assailed their conviction and sentence through filing of Crl. Appeal No.1268 of 2017, under section 410 Cr.P.C whereas the complainant has filed Crl. Appeal No.449/2018, under section 417 Cr.P.C. against acquittal of respondents/accused namely Munawwar Hussain and Muhammad Rauf. The complainant has also filed Crl.
Revision No.170/2018, under section 439, Cr.P.C. for enhancement of sentence of appellants Rashid Hussain and Shahid Hussain. As all the matters, which have arisen out of one judgment of the learned trial court, therefore, are being disposed of through a consolidated judgment.
3. Prosecution 's story as portrayed in the FIR (Exh.P A) lodged on the complaint (Exh.PC) of Shahid Imran son of Bashir Ahmad, Caste Arain (PW-3) is to the effect that during the intervening night of 10/11.10.2015 at about 2.30/3.00 AM, his mother , wife and his son were present at home whereas the complainant was on his way back to home from Jaranwala after attending a marriage ceremony. He had friendly relations with accused persons.
Accused persons Rashid Hussain armed with 'danda', Shahid Hussain armed with pistol along with two unknown accused who were also armed with firearm weapons, knocked at the door of his house, on the asking of his mother, the accused persons introduced them, whereupon his mother opened the door. Accused persons after trespassing into his house started belabouring his mother. Rashid Hussain caused injuries by giving 'danda' blows on the head of his mother. They also forcibly abducted his wife Mst. Shaista Bibi by boarding her on a white coloured car. Due to resistance, hue and cry, the witnesses Shehbaz Hussain son of Nawab Din and Binyamin and other residents of the locality attracted to the place of occurrence and witnessed the occurrence.
In the meanwhile, the complainant also reached at his home. He found the luggage scattered hither and thither in the house. On checking, 11 tolas gold ornaments, net cash Rs.1,20,000/-, stitched and un-stitched clothes and mobile phone etc he also found stolen. Further alleged that accused persons had abducted his wife for the purpose of Zina. Hence, instant case.
4. Naveed Alam, ASI (PW-9) being posted as ASI at P.S. City Mian Channu with entrusted with the investigation of this case. He after reaching at the place of occurrence, recorded the statements of PWs namely Shehbaz and Binyamin u/s 161 Cr.P.C. regarding the occurrence. On the same day, he after inspecting the place of occurrence prepared its rough site plan (Exh.PK). On 15.10.2015, the complainant and PWs got recorded their supplementary statements nominating accused persons namely Rauf and Munawwar Hussain. On 20.10.2015 he arrested accused Rauf and Munawwar Hussain since acquitted: On 30.10.2015 he arrested the appellants. He on 02.11.2015 joined Mst. Shaista Bibi, the victim, in investigation, recorded her statement under section 161 Cr.P.C. and produced her before Ilaqa Magistrate for recording her statement under section 164 Cr.P.C and got her medically examined from DHQ Hospital, Khanewal. On 04.11.2015, accused Rashid Hussain in pursuance of his disclosure got recovered three gold rings (P-1/1-3), two gold ear rings (P-2/1-2) and necklace (P-3) which were taken into possession by the I.O. vide a recovery memo (Exh.PG) and also prepared its memo of identification (Exh.PE). On the same day accused Rashid also got recovered 'sota' (P-4) which the I.O. took into possession vide recovery memo (Exh.PH). He on 06.11.2015 brought accused Rashid and victim Shaista Bibi at PFSA, Lahore for the purpose of DNA test. On the same day accused Shahid in pursuance of his disclosure got recovered pistol .30 bore (P-5) along with four live bullets (P-6/1-4) which the Investigating Officer took into possession vide recovery memo (Exh.PF) and prepared its rough site plan. He on 10.11.2015 got remanded accused Rashid and Shahid to judicial lock up being found fully involved in this case. He recorded the statements of the PWs stage-wise. He deposited the case property with the Moharrar for its safe custody in the Malkhana and its onward transmission to the quarter concerned. The investigation was encapsulated into a report under section 173 Cr.P.C., which was duly submitted, the learned trial Judge took the cognizance, supplied the requisite statements under section 265(c) Cr.P.C., framed the charge against the accused on 16.01.2016, to which they pleaded not guilty and claimed trial.
5. Ocular account in this case consists of the statements of the Shahid Imran complainant (PW-3), Muhammad Binyameen (PW 4), Mst. Rafia Begum (PW-5) and Mst. Shaista Bibi, the victim (PW 6). Investigation in this case was carried out by Naveed Alam, ASI (PW-9)
The medical evidence has been furnished by lady doctor Benazir Sajid, WMO (PW-10) who on 11.10.2015 medically examined Mst. Rafia Begum and observed as under:-
1. Incised wound 5 cm x 1 cm bone exposed close to the hair line in mid line of the head. Bleeding profusely .
2. A lacerated wound 4 cm x 1 cm bone exposed on the mid line of the head about 5 cm behind the hair line.
3. A lacerated wound 4 cm x 1 cm on the left side of the head about 5 cm above the ear, bone exposed, bleeding profusely .
4. A lacerated wound 5 cm x 1 cm bone exposed on the right side of the head about 6 cm above the ear, bleeding profusely .
5. A lacerated wound 6 cm x 1.5 cm bone exposed on the back of the head on the left side.
6. Incised wound muscle deep on the front of the right forum about 5 cm proximal wrist.
Patient was referred to Nishtar Hospital, Multan for further management.
OPINION: According to the ward report of Nishtar Hospital, Multan, the patient remained in ward, managed conservatively and was discharged; that so according to the ward report, injuries No.1,2,3,4,5 comes u/s 337A(ii) PPC and injury NO.6 comes u/s 337F(ii) PPC. He also endorsed ward report Exh.PN/2.
Statements of rest of the prosecution witnesses are formal in nature.
6. Learned ADPP while giving up PWs Shehbaz Hussain and Shahbaz Ali 293/C being unnecessary and by tendering the report of PFSA as Exh.PQ vide his statement dated 20.1 1.2017, closed the prosecution evidence.
7. Thenceforth, the appellants were exam ined under Section 342, Cr.P.C; wherei n they refuted the prosecution' s version.
The appellant Rashid Hussain while replying to the question why this case against him made the following deposition:- "It is false case, the complainant Shahid Imran bore grudge against me and co-accused that a case FIR No.51/15 dated 24.03.2015 by one Muhammad Nadeem s/o Noor Muhammad caste Rajput, r/o Mohallah Rehmania, Mian Channu against the complainant Muhammad Shahid Imran Exh.DG was registered with P.S. FIA, Multan. I and co- accused joined the investigation from the complainant side of Exh.DG for many times against the complainant Shahid Imran (as an accused), so due to that grudge alleged victim Shaista who was due to some matrimonial dispute with the complainant Shahid Imran left his house 15 days prior to 12.10.2015, filed a suit for dissolution of marriage Exh.DC/2 also filed an application for sending her Dar ul-Aman Exh.DC/5 and also recorded her statement Exh.DC/7 on 16.10.2015 according to which no allegation of any kind against me and co-accused was leveled by victim Shaista rather she negate the happening of occurrence and on 30.10.2015 a compromise was effected between said Shaista victim and complain ant Shahid Imran and in lieu of compromise as mentioned in order dated 30.10.2015 Exh.DC suit for dissolution of marriage was withdrawn and complainant in order to falsely implicate me and co-accused used Mst. Shaista as a tool to complete his revenge and succeed ed in obtaining MLC against the facts, no alleged occurrence had ever been taken place, neither I nor any co-accused caused any injury on the person of Mst. Raffia Begum (since died), I and co-accused did not abduct Mst. Shaista the alleged victim nor she was subjected to rape by me. PW-2 Binya meen is closed friend of complainant, so due to that reason he deposed falsely . I and co-accused are innocent and beg acquittal.
Appellant Shahid Hussain also deposed in line with his co-appellant Rashid Hussain.
8. They neither opted to appear as their own witness in terms of Section 340(2 ), Cr.P.C, nor opted to adduce defence evidence.
9. On the conclusion of trial, the learned trial Court has convicted and sentenced the appellants in the above stated terms while acquitting them of the charge under section 365-B, 376 PPC. The learned trial court has acquitted their co-accused namely Munawwar Hussain and Muhammad Rauf from the case by extending them the benefit of doubt.
10 Learned counsel for the appellants submits that allegedly the injured PW. Mst. Rafia Begum (PW-5) who after recording her examination-in-chief never appeared in the court for her cross examination and as such her statement/examination in chief has no evidentiary value, thus, cannot be relied upon/treated as evidence. While referring to statement of PW-5, he argued that according to which the injury was caused with fist blows whereas that medical evidence, furnished by lady doctor Benazir Sajid (PW.10), has thickened the mystery as she has noted at least two sharp edged incised wounds on the person of injured PW, hence, there exists irreconcilable contradiction in the ocular and medical evidence; that keeping in view the medical evidence and other attending circumstances of the case, provision of Section 324 PPC do not attract; that in fact no occurrence had taken place and injuries are maneuvered; that case has been falsely foisted upon the appellants. Further submits that two of the co-accused namely Munawwar Hussain and Muhammad Rauf were introduced through supplementary statements who were closely related to the present appellants and were also previously known to the complainant party, therefore, their induction in the case through supplementary statement speaks a volume about mala fide of the complainant; that while referring PW.3 learned counsel has pointed out that there was criminal litigation in existence between the complainant and the appellants. Lastly added that the trial court has acquitted the appellants from the charge under sections 365-B, 376, 496-A, 380, 334 PPC disbelieving ocular account, hence, the impugned conviction cannot sustain on the basis of same evidence.
11. Conversely , learned Law Officer assisted by learned counsel for the complainant has not only criticized the acquittal of the co-accused but has also defended the impugned judgment by opposing appellants' submissions.
They have also argued, that both the appellants are specifically nominated as accused in a promptly lodged FIR; that alleged occurrence took place at the odd hours of night in the house of the complainant; that medical evidence corrobrates the ocular account; that Rashid appellant was armed with 'danda' whereas Shahid appellant was armed with pistol and recoveries have been made from them; that keeping in view the locale of injuries which have been caused on the head of an old lady, the observations of the doctor might have been due to some mis- understanding, therefore, there exist no contradiction in MLC and ocular account; that Mst. Shaista Bibi (PW 5) recorded her examination-in-chief and her cross-examination was reserved but on subsequent dates, it was the defence, which sought adjournments and the said PW being old and infirm lady used to be brought in the court through wheel-chair , she later on died, therefore, on account of conduct of the appellants, their objection for non- cross examining the PW-5 will be of no avail to them; that the victim has also supported the version of the complainant and has thus prayed for dismissal of appeal against conviction and lastly has craved for acceptance of appeal against acquittal.
12. After hearing learned counsel for the appellants as well as the learned Law officer assisted by complainant' s counsel and going through record, it is observed that learned the trial court charge sheeted both the appellants and their acquittal two co-accused-persons on 16.01.2016 under section 365-B, 376, 324, 337A(ii), 337F(ii), 34 PPC.
On the conclusion of trial, learned trial court while acquitting the co-accused namely Munawwar Hussain and Muhammad Rauf of the charge in toto has convicted and sentenced the appellant only under section 324, 337A(ii), 337F(ii), 34 PPC and only had acquitted them of rest of the charges. The learned trial court has disbelieved the evidence of all the PWs i.e. Shahid Imran, complainant (PW-3) who was admittedly not an eye witness of the occurrence, Muhammad Binyameen (PW-4), the alleged eye-witness of the occurr ence and Mst. Shaista Bibi wife of Shahid Imran (PW-6), the alleged abductee. The learned trial court has passed the conviction against the appellants while believing the statement of injure Mst. Rafia Begum (PW-5), mother of the complainant, who on 27.03.2017 while recording her examination-in-chief has deposed that "I opened the door, accused Rashid Hussain armed with Danda, Shahid Hussain armed with pistol along with two unknown persons were identified as Munawwar Hussain and Rauf were also armed with firearm weapons entered into the home forcefully and started beating me. Rashid Hussain made blows of fist and kicks on my body . I was seriously injured. Accused persons put Shaista Bibi while dragging her into the white colour car and decamped. In the meanwhile, my son Shahid Imran who had gone to Jaranwala also reached there ". Initially , the complainant on the information so furnished to him by this witness as well as by rest of the PWs, alleged in the FIR that appellant Rashid Hussain armed with 'danda', while appellant Shahid Hussain armed with pistol trespassed into his house along with two unknown accused (subsequently named as accused through a supplementary statement), made 'danda' blows on the head of his mother who was seriously injured. The medical evidence in this case has been furnished by lady doctor Benazir Sajid (PW-10) who on 11.10.2015 while being posted as WMO at THQ Hospital, Mianchannu medically examined Rafia Begum, the injured PW (PW-5) under the surveillance of the police after observing the injured and issued MLC showing as many as six injuries on her person. Out of the noted injuries, injuries No.1&6 were found by her to be incised wounds whereas injuries No.2, 3, 4 and 5 as lacerated wounds. She declared injuries No.1, 2, 3, 4 & 5 as Shajjah-e-Mudihah falling under section 337A(ii) PPC whereas injury No.6 as Ghair Jaifa Badi'ah falling under section 337F(ii) PPC. She while facing the test of cross-examination had stated that injury No.1 cannot be caused by blunt weapon of any kind. From the available record, it is obviously apparent that none of the accused was armed with any of the sharp edged weapon. It has been noticed that on 27.03.2017 after recording examination in chief of said injured PW-5, on the request of learned defence counsel Ch. Muham mad Asif, Advocate, the cross- examination upon her was reserved. The trial proceedings duly reflected through the interim orders sheet disclose that on none of the subsequently dates, the said injured PW.05 has exposed herself for cross-examination till 08.6.2017. The learned counsel for the complainant on 08.06.2017 produced the death certificate of PW.5 in the court. It is noticed that after 27.03.2017 till 08.6.2017 as many as seven times case has been adjourned but information of death of PW-05 was imparted to the court on 27.05.2017 and as such her presence has not been ensured for conducting cross examination.
The resume of the above facts indicates that despite disbelieving all the remaining PWs, the learned trial court has recorded the impugned conviction against the appellants, only on the basis of statement/examinati on in chief of PW-5 recorded on 27.03.2017, the cross examination upon her could not have been conducted on account of her non-exposure, on any of the dates, before her death, in court. As a result thereof, right of appellants/accused for conducting cross examination could not have been exercised by them. Therefore, crucial question which emerges requiring its determination is whether the conviction and sentence recorded by the learned trial court through its impugned judgment, solely on the basis of a statement/examination-in chief of a witness without affording any opportunity of cross examination over the witness (PW-5) to the defence, will be sustainable or not. This question can be answered after going through the provisions/Articles 132, 133 and 134 of the Qanun-e-Shahadat Order , 1984 read as follows:-
132. Examination-in-chief, etc. (1) The examination of a witness by the party who calls him shall be called his examination in chief.
(2) The examination of a witness by the adverse party shall be calls his cross-examination.
(3) The examination of a witness subsequent to the cross-examination by the party who called him,, shall be called his re-examination.
133. Order of examination . (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examined.
(2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination and, if new matter is, by permission of the court, introduced in re-examination, adverse party may further cross-examine that matter.
The object behind granting a right of cross-examination can only be achieved after affording a fair opportunity to an opposite party , likely to be adversely affected, being on the receiving end in the shape of examination-in-chief from statement so recorded by the court, in all the matters. To adjudge the veracity , credibility and trustworthiness/ truthfulness of the witness enables the court, for relying upon, while deciding the matter before it. The grant of a fair opportunity for cross examining a witness by the adversary has its genesis and roots in the principle of audi alterm partem , duly codified in the shape of Art.10-A of our Constitution. Under the law, unless and until, the accused is offered/granted right of cross examination over a witness who has deposed against him, such a statement will have no evidentiary value and as such shall be inadmissible for acting upon it or for drawing any inference therefrom against the adversary party . In this regard reliance is placed upon case titled Peer Mazhar -ul-Haq v. the State (PLD 2005 SC 63). There are certain exceptions where examination-in-chief recorded by the court can be read against accused which have been enumerated in Section 512, Cr.P.C., and Articles 46 of the Qanun-e Shahadat Order , 1984, and evidence of a witness under the aforesaid provision being preserved can be relied upon only, thus, I hold that the statement/examination-in-chief of PW-05 to be no evidence and as such no conviction can be sustained upon it. Respectful reliance is placed on case titled Miran alias Mir Muhammad v. the State (PCr.LJ 2013 Sindh 244).
13. Apart from the above, it is observed that the learned trial court has disbel ieved the entire ocular account furnished by Shahid Imran complainant (PW-3), Muhammad Binyameen (PW-4), Mst. Rafia Begum (PW-5) and Mst. Shaista Bibi, the victim (PW-6) and acquitted appellants and their co-accused of the charge under section 365-B, 376, PPC which offences were graver in terms of entailing greater punishment, hence, discarding and non- reliance by the learned trial court upon such evidence, also sheds its adverse implications overall on the story of the prosecution. The only remaining evidence relied upon by the learned trial court was examination in chief of Rafia Begum (PW-5) which in absence of giving a fair opportunity of conducting cross examination, being inadmissible in evidence cannot be relied upon for maintaining and upholding the impugned conviction by this court. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Ghulam Haider v. the State (MLD 2018 Sindh 450); wherein following principle was laid down:- "---Arts. 132 & 133---Cross-examination- --Object---Cross examination was the great legal engine invented to unearth the truth from thesta5ement of a witness---Opportunity to cross-examination contemplated by the law, must be real, fair and reasonable---Cross-examination was not the empty formality , but a valuable right and best method for ascertain the truth".
The Hon'ble Supreme Court of Pakistan in the case of Arbab Tasleem v. the State (PLD 2010 SC 642) where in its head note (a) following principle was laid down:- "---Ss. 302(b)/34 & 324/34---Constitution of Pakistan (1973), Art. 185(3)---Qatl-e-amd and attempt to qatl-e-amd -- Leave to appeal was granted only to examine whether conviction of accused under section 302(b), PPC on the basis of mere examination in chief of the eye-witness, who was not cross-examined by the accused, could have been treated by the court as statement under section 512, Cr.P.C. because at the time of recording of such statement accused was neither absent nor absconding.
It has also been noticed that learned trial court has proceeded to hold, both the appellants guilty under sections 324 PPC also through impugned judgment also. The perusal of provisions of Section 324 PPC, in view of the allegation incriminating material on record, does not even remotely suggest the existence of any circumstance in the case for attracting provisions of section 324 PPC. The nature of injuries noted down by the lady doctor Benazir Sajid (PW-10) as observed earlier have been classified as Shajjah-e-Mudihah falling under section 337A(ii) PPC and Ghair Badi'ah falling under section 337F(ii) PPC which have not been even declared by them dangerous to life. So far as the recovery is concerned, it is established principle of law that the recovery is deemed to be a corroborative piece of evidence to the direct evidence and as per dictates of justice whenever direct evidence is disbelieved it would not be safe to maintain conviction on confirmatory evidence. In the case of MUHAMMAD JAMIL vs. MUHAMMAD AKRAM and others (2009 SCMR 120) the august Supreme Court of Pakistan had held as under:- "---S. 302(b)---Appreciation of evidence---Principle---In a case of direct evidence other pieces of evidence are used for corroboration or in support of direct evidence---When direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence."
14. For what has been discussed herein above, prosecution has miserably failed in bringing on record any admissible evidence. When the major quantum of evidence has already been disbelieved by the learned trial court on valid consideration after properly appreciating evidence available on record while assigning justifiable reasonings. Moreover , in such like situations it becomes incumbent upon the Court to extend the benefit of doubt in favour of the accused. Furthermore, to extend the benefit of doubt so many circumstances are not required rather one circumstance which creates reasonable doubt in the veracity of the prosecution version is sufficient for the purpose, not as a matter of grace rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of TARIQ PERVEZ vs. THE STATE (1995 SCMR 1345 ); wherein following principle was laid down:- "---Art. 4---Benefit of doubt, grant of---For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
Similarly in the case titled ARIF HUSSAIN AND ANOTHER vs. THE STATE (1983 SCMR 428), the august Supreme Court of Pakistan had further held as under:- "---S. 302---Murder ---Evidence---Benefit of doubt-- Prosecution case not free from doubt---Charges not brought home to accused in manner required under law-- Accused given benefit of doubt and acquitted".
Similar view was affirmed in the case of Muhammad Akram vs. The State (2009 SCMR 230 ).
Hence, instant Crl. Appeal No.1268 of 2017 is allowed , consequently , convictions and sentences imposed by the learned trial court vide judgment dated 05.12.2017 are set aside and both the appellants are acquitted of the charge imputed against them by extending them benefit of doubt. They are on bail. Their sureties are discharged.
15. As far as criminal revision No. of 170 of 2018 filed by Shahid Imran complainant against respondents No.2&3/convicts namely Rashid Hussain and Shahid Hussain for enhancement of their quantum of sentences as well as to the extent of their acquittal in charges under sections 376, 365-B, PPC is concerned, for the reasons mentioned op-cit, instant criminal revision petition has been found meritless and the same stands dismissed .
16. As far as criminal Appeal No.449 of 2018 filed by Shahid Imran complainant against acquittal of respondents No.2 & 3 namely Munawwar Hussain and Muhamamd Rauf is concerned, I am of the considered view that the learned trial court has rightly acquitted them. Furthermore, learned counsel for the petitioner has not been able to persuade this court to differ with the reasonings recorded by the learned trial in respect of acquittal of the said respondents, therefore, instant appeal has also been found meritless and the same also stands dismissed.