Ch. Mushtaq Ahmad, J.--Zeeshan alias Sani appellant alongwith two others was tried in case FIR No, 324 dated 30.08.2007 registered under Sections 302/324/337F(v)/34, P.P.C. at Police Station Chowk Azam, District Layyah.
On conclusion of trial learned Additional Sessions Judge, Layyah vide his judgment dated 30.9.2009 convicted the appellant 'under Section 302(c), P.P.C. and sentenced him to 20-Years R.I. with payment of compensation to the tune of Rs, 50,000/- payable to legal heirs of Sajawal Pervez, deceased in terms of Section 544-A. Cr.P.C. and in the event of default thereof to undergo further simple imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. The remaining two accused namely , Allah Bakhsh and. Muhammad Imran alias Chand were acquitted. Besides this appeal, complainant Manzoor Ahmed has filed Criminal Appeal No, 612/2009 against acquittal of respondents and Criminal Revision No, 324/2009 seeking enhancement of sentence to Zeeshan alias Sani appellant. W e intend to decide all these matters through this single judgment.
2. The prosecution story narrated by Manzoor Ahmad complainant through his statement (Ex.P .N) before the police is that on 30.08.2009 he was present at his shop alongwith his son Sajawal Pervez who used to work with him at the shop. At evening time, his son Sajaw al Pervez was ready to go to house at his own motorcycle when Abdul Aziz and Aamir Nawaz on a motorcycle came there and then they all riding on moto rcycles proceeded to his house.
Thereafter , complainant alongwith Muhammad Ayub and Sajid Ali after closing the shop proceeded to his house. At about 8.00 P.M when they reached in the Chowk near the house of Ghulam Muhammad Arain, they heard noise and attracted to the place of occurrence where they saw that Allah Bakhsh accuse d was holding Aamir Nawaz and Muhammad Imran alias Chand was holding Aamir Nawaz into Japha whereas Zeeshan alias Sani appellant inflicted two Churri blows to Sajawal Pervez deceased out of which first blow landed on left side of his chest and second blow in-between abdomen and leg on his left side. Abdul Aziz tried to rescue Sajawal when Zeeshan alias Sani appellant inflicted a Churri blow at his abdomen and both fell, down on the ground. Zeeshan alias Sani appellant also inflicted Churi blows to Aamir Nawaz underneath his left armpit. On hue and cry residents of the area attracted at the spot and tried to catch hold of accused but Zeshan alias Sani appellant threatened that if any one tried to come forward he would meet with the same treatment and then all the accused persons brandishing their respective weapons' fled away in the street. Then all the three injured were taken to the hospital Chowk Azam but due to precarious condition Sajawal Pervez was shifted to Nishtar Hospital, Multan where he succumbed to the injuries. Motive behind the occurrence was business hostility .
3. Investigation of the case was conducted by PW-11 Rabnawaz, SI who stated that on 30.08.2017 on receiving information about the occurrence he came to the hospital Chowk Azam. Three injured persons namely Sajawal Pervez, Abdul Aziz and Aamir Nawaz were present there. He recorded statement of Manzoor Ahmad complainant Exh.PN, prepared injury statements of all the three injured persons. He recorded statement of Sajawal Pervez (deceased) under Section 161, Cr.P.C. then he proceeded to the place of occurrence and prepared, un-scaled site plan Ex.PY . He took blood stained Qameez of Sajawal Pervez (P-2), blood-stained Qameez of Abdul Aziz (P-3) and blood-stained Qameez of Aamir Nawaz (P-4). On 31.08.2007 dead body of Sajawal Pervez was handed over to him by authorities of Nishter Hospital and he escorted the same to the mortuary at RHC, Chowk Azam. He prepared his injury statement Exh.PJ and inquest report Exh.PK, Riaz Ahmad 148-C was deputed for post-mortem of the dead body . He added Section 302, P.P.C. after death of Sajawal Pervez. On 20.09.2007, he arrested accused Imran alias Chand and on 06.10.2007 appellant Zeeshan alias Sani was arrested and blood-stained Churri (P-5) was recovered on the pointation of appellant Zeeshan alias Sani..
4. After completing the investigation I.O. submitted challan at the Court concerned where the accused were charge sheeted under Sections 302/324/34, P .P.C. on 09.02.2008 to which they pleaded not guilty and claimed trial.
5. PW-1 Dr. Muhammad Yousif medically examined the deceased Sajawal Perve z while in injured condition and two other injured namely Abdul Aziz and Aamir Nawaz. Thereafter , on 31.08.2007, he conducted post-mortem examination of Sajawal Pervez deceased.
6. In order to prove its case, prosecution got examined as many as 1 1 witnesses.
7. After tendering in evidence reports of Chemical Examiner of blood-stained earth Exh.PZ, report of Chemical examiner regarding Churri Exh.P AA, report of Serologist Exh.P AB and Exh.P AC, prosecution closed its evidence.
8. Thereafter statement of accused-appellant under Section 342, Cr.P.C. was recorded. In reply to a specific question "why this case against you and why the PWs have deposed against you", appellant Zeeshan alias Sani replied as under: "All the PWs are related interse and near relative of the deceased. I have no dispute of business with deceased or the complainant party as nature of business of both the parties is of different kind. So motive alleged by the prosecuting is frivolous, baseless and absolutely false. Prosecution also could 'not succeed in proving the same. All the prosecution evidence is improbable, un-believable and interested one. F.I.R. recovery memos. were prepared with ante dates and timing. Exh.PX is a fabricated document prepared after the death of the deceased malafide to strengthen the prosecution case. Had Sajawal Pervez deceased been able to make statement after sustaining injuries, then F.I.R would have been chalked out on his statement. Recoveries are planted and all the prosecution story is absolutely false. Infact deceased and injured PWs were member of a group of vagabonds and they used to tease and taunt me and persuaded me for sin i,e, unnatural act. Prior to the occurrence deceased alongwith his group came at my shop and on that day my uncle was not present there where they made nefarious gestures and taunted me upon which I abuse them and they left the shop while giving threats of dire consequences. I was having an apprehension in my mind that Sajawal Pervez etc in order to fulfill their lust may abduct me at any time due to which I use to keep a knife in the Naifa of my Shalwar . On the night of occurrence as usual I was going to play carom board at the house of my friend and on the way when I reached at the- place of occurrence it was complete darkness at that time because of fault in grid station at Chowk Azam. All of sudd en four motorcycle riders each having two persons on it came there from each street in the Chowk and intercepted me. Some of them were armed with sharp edged weapons. They in order to abduct me tried to board me on the motorcycle upon which I took out the knife from the Naifa and in order to frighten the assailants I pointed out the same towards them and the assailants made blows with sharp edged weapons which caused injuries to different person's. Due to darkness assailants were not identifiable and I was not in the knowledge to whom I have cause the injuries. Later on I came to know that such and such persons have sustained injuries in the occurrence and out of which some have been concealed by the prosecution. All the injured shown to have sustained injuries in the occurrence by the prosecution were not caused 'by me. Some of them might have sustained injuries at the hands of their own party men. I do not intend to commit murder of Sajawal Pervez nor I intend to cause injuries to anyone. In order to save my honour , while exercising right of private defence, if had caused injuries to any one this is without any intention of murderous assault. Allah Bakhsh and Imran alias Chand accused were not present at the time of occurrence nor they have taken any part in the occurrence. I was all alone at that time. Anyhow , Sajid/M.A yub and Manzoor PWs were not present at the time of occurrence nor they witnessed the occurrence. I am innocent my mother died in my childhood. I am alone brother of my alone minor sister . All prosecution story is concocted one and all pieces of evidence collected by prosecution are tainted with fabrication."
9. Appellant did not opt to record his statement under Section 340(2), Cr.P.C. in disproof of the charge levelled against him.
10. After conclusion of the case, learned trial Court convicted and sentenced the appellant Zeeshan alias Sani as mentioned in opening paragraph of this judgment, whereas co-accused were acquitted from the charge.
11. Learned counsel for the appellant Zeeshan alias Sani argued that learned trial Court has disbelieved the prosecution evidence; appellant has been convicted and sentenced on the basis of his statement recorded wider Section 342, Cr.P.C.; in fact acquittal of the present appellant was not challenged by the prosecution under Section 302-B, P.P.C. rather his acquittal under Section 324, P.P.C. was questioned in Crl. Appeal No, 612/2009, however this Court while dismissing the appeal against acquittal as having not been pressed qua co-accused issued notice to the present appellant of his acquittal under Section 302-B, P.P.C. and that learned trial Court should have acquitted the accused when the evidence of prosecution was disbelieved. lie has placed reliance on the cases reported as Waqar Ahmed us. Shaukat Ali and others (2006 SCMR 1139), Azhar Iqbal vs. The State (2013 SCMR 383).
12. On the other hand, learned DDPP assisted by learned counsel for the complainant has vehemently argued that learned trial Court has not correctly appreciated the prosecution evidence; the appellant Zeeshan alias Sani did not receive even a scratch from the hands of deceased and other prosecution witnesses; he has caused repeated blows to the deceased and injured; he has wrongly been convicted under Section 302-C, P.P.-C.4 the injured received severe injuries at his hands but he has been acquitted under Section 324, P.P.C. In the light of above submissions he has prayed for convictio n of the appellant under Section 302-B, P.P.C. as well as under Section 324, P .P.C. for causing injuries to the injured PWs.
13. Arguments heard. Record perused.
14. Three accused persons were implicated by prosecution. In Criminal Appeal No, 612 of 2009 filed by complainant Manroor Ahmad notice was issued to Respondent No, 2 Muhamma d Zeeshan alias Sani. Criminal Appeal No, 00 of 2009 was filed by Zeeshan alias Sani appellant against his conviction recorded under Section 302-(c), P .P.C. According to findings recorded by learned trial Court prosecution had failed to prove charge against two co- accused namely Allah Bukhsh and Muham mad Imran, whereas Zeeshan alias Sani appellant had acted in exercise of right of self defence and caused injuries to the deceased Sajawal Pervez and two injured PWs. Occurrence in this case had taken place at night on 30.08 2009. Manzoor Ahmad father of deceased had reported the crime stating that his son Sajawal Pervez used to work with him at shop; at evening time on the day of occurrence Abdul Aziz and Aamir Nawaz came at his shop on motorcycles and took his son Sajaw al Pervez with them--After their departure complainant alongwith Muhammad Ayub and Sajid Ali followed them on another motorcycle. At about 8.00 p.m, when they reached in the Chow k near the house of Ghulam Muhammad Arain, they heard noise and saw Allah Bukhsh accused (since acquitted) was holding Sajawal Pervez deceased in Japha. Place of occurrence was at some distance from the shop of the complainant. 1.0. of the case reached at hospital where he recorded statement of the complainant. Another piece of evidence relied upon by the prosecution is statement of the deceased recorded under Section 161, Cr P.C. at the time when he was shifted to hospital for treatment. PW-1.
Doctor Muhammad Younis as explained in his statement before trial Court that condition of injured was critical. PW- 1 has also not confirmed that certificate on request of I.O. was issued by him that injured was in a position to make statement before I.O. of the case which shows that an attempt was made by prosecution to improve its case by introducing, statement of deceased in the form of dying declaration which in the given situation was un-reliable.
Testimony of PW-10 Aamir Nawaz is also not reliable as admittedly he was close friend of the accused. In para No, 19 of the judgment, learned trial Court concluded that prosecution had failed to prove its case against accused Allah Bakhsh and Muhammad lmran alias Chand as they were neither armed with Churri nor they were assigned any role of causing injuries to anyone. It is pertinent to mention here that in appeal against acquittal, they were also arrayed as respondents but on first hearing appeal was not pressed to their extent which was accordingly dismissed. However , notice was issued to Zeeshan alias Sani Respondent No, 2 who was convicted by the trial Court not under Section 302(b), PPC but under Section 302(c), PPC on the ground that he exceeded 'right of self defence while causing injuries to Sajawal Pervez, whereas on the charge of causing injuries to Muhammad Aamir and Abdul Aziz he was acquitted. We have noticed- that from the day one it was version of Zeeshan alias Sani appellant that in fact deceased Sajawal Pervez and PWs Muhammad Aamir and Abdul Aziz used to tease him for the purpose of committing sodomy and out of fear he used to keep a knife with him to save his honour and at the time of occurrence he was alone when they came and forced him to allow them to fulfill their nefarious design and in that situation he in exercise of self defence caused injuries to them. We have observed that presence of complainant in this case was highly doubtful as such his testimony was not worth-reliance. Prosecution also attempted to create false evidence in the shape of dying declaration stating that before his death deceased made statement before the I.O. whereas accord ing to statement of PW-1 his condition was precarious and he was not in position to make any such statement. As per prosecution the deceased was accompanied by his two companions Aamir Nawaz and Abdul Aziz as well as complainant Manzoor Ahmad alongwith Muhammad Ayub and Sajid Ali who were six in number , then in the presence of six persons how appellant Zeeshan alias Sani left the place of occurrence. One thing is crystal clear from the statement of witnesses that they have concealed true facts of the case. The occurrence did not take place in the mode and manner stated by the witnesses. As noted above presence of complainant was highly doubtful and prosecution evidence was neither reliable nor confidence inspiring which has rightly been rejected by learned trial Court. When the prosecution evidence itself was not reliable, conviction on plea of the accused/appellant was not justified. In case of Azhar lqbal vs. The State (2013 SCMR 383 ), it was laid down as under: "Prosecution had failed to prove its case against accused beyond reasonable doubt, therefore, he should have been acquitted, even if he had taken plea and admitted to killing the deceased. It was however , laid down that statement of an accused recorded under Section 342, Cr.P.C. was to be accepted or rejected in its entirety and where the prosecution evidence was found to be reliable and the exculpatory part of such statement was established to be false and excluded from consideration then the statement might be read in support of prosecution's evidence."
16. In the above backdrop when prosecution evidence was found un-reliable conviction could not be based upon statement of accused as it was to be believed or rejected in toto. So, conviction recorded by the learned trial Court under Section 302(c), P .P.C. was also not warranted.
17. For the 'reasons recorded above, Zeeshan alias Sani appellant is acquitted from all charges. He is on bail, his sureties are discharged.
18. For the same reasons Crl. Appeal No, 612 of 2009 and Crl. Revision No, 324 of 2009 filed by complainant Manzoor Ahmad are hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.