Ahmad Yar alias Ahma son of Lala, Shahzad and Ghazanf ar, both sons of Ahmed Yar, all Loona by caste, residents of Pindi Dakhli Kandiwal, District Chiniot (appellants) along with Mst. Nusrat Bibi, Ansar and Fakhar , co-accu sed (since acquitted) were involved in case FIR No. 290, dated 26.12.2005, offence under Sections 302, 148, 149, PPC, registered with Police Station, Kandiwal. However , being dissatisfied with the investigation carried out by the Investigating Of ficer, Muhammad Yaqoob, complainant (PW -1 ) preferred private complaint titled as:- "Muhammad Yaqoob V ersus Ahmad Yar alias Ahma, etc." offence under Sections 302, 148, 149, PPC. During the course of trial, cursory statements of the prosecution witnesses were recorded by the learned trial Court and after recording the cursory statements and taking into consideration the other material available on the record, in terms of order dated 12.06.2008, the learned trial Court summoned the respondents of the aforesaid complaint to face charge. The learned trial Court framed charge against the respondents vide order dated 08.10.2008 and thereafter summoned the prosecution witnesses. After completion of prosecution evidence and recording of statements of the appellants in terms of Section 342,Cr .P.C. the learned trial Court in terms of judgment dated 12.04.2010 convicted/sentenced the appellants as under: Sr.# Name of the AppellantConviction/sentence
1. Ahmed Yar alias AhmaUnder Section 302(b), PPC, sentenced to imprisonment for life with direction to pay Rs. 100,000/- as compensation to the legal heirs of the deceased under Section 544- A, Cr .P.C. In case of default in payment of the same, to further undergo six months S.I.
2. Shahzad Under Section 337 A(i), PPC, sentenced to undergo two years R.I. with direction to pay daman Rs.
10,000/- to the injured Muhammad Munawar .
3 Ghazanfar Under Section 337 A(i), PPC, sentenced to undergo two years R.I. with direction to pay daman Rs. 10,000/- to the injured Muhammad Yaqoob, Benefit of Section 382-B, Cr .P.C. was extended in favour of all the accused/appellants.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellants assailed their conviction and sentence by way of filing Crl. Appeal No. 1086/2010.
3. Prosecution story as contained in the crime report (Exh. CW-2/B) lodged on the statement (Exh.CW -2/A) of Muhammad Yaqoob, complainant (PW-1) is that he is resident of Pindi. On 21.12.2005 at about the time of Maghrib prayer , his son Muhammad Munawar was coming home after fetching milk as usual. When he reached near the house of Ahmad Yar alias Ahma son of Lala, caste Loona, resident of the deh, his pet dog ran after him for biting and torn his woolen chaddar . Due to which, Muhammad Munawar and Ahmad Yar alias Ahma grappled and also abused each other . Muhammad Munawar told the whole incident to his mother Mst. Azmat Bibi and the complainant in the house. Upon which, the complainant along with his wife Mst. Azmat Bibi and his sons Muhammad Munawar and Muhammad Saqlain went to the house of Ahmad Yar alias Ahma for complaining the matter . When they reached near the Baithak of his house, Nusrat Bibi daughter of Ahmad Yar, who was standing in the door of her house, seeing them raised lalkara that Munawar Hassan has come, he should not be left alive for abusing and disgracing her father . Upon which, Shahzad, Ansar , Ghazanfar , Fakhar, sons of Ahmad Yar, Nusrat Bibi daughter of Ahmad Yar, Ahmad Yar son of Lala, caste Loona, residents of the deh, armed with sotas came there while raising lalkaras. Shahzad gave sota blow at the forehead of Muhammad Munawar , who fell down. The wife of the complainant Azmat Bibi tried to rescue her son, upon which Ahmad Yar caused sota blow at the back of neck of Azmat Bibi and also pushed her, who fell down. Nusrat Bibi caused sota blow at the right shoulder of the complainant. Ghazanfar caused sota blow landing below the right eye of the complainant. Fakhar inflicted sota blow at the back of left hand of the complainant. Ansar inflicted sota blow on the lower lip of Saqlain. The occurrence was witnessed by them along with Sarwar son of Sardar , caste Kodhan, resident of Pindi Dakhli Kandiwal, Tehsil Chiniot and Nawaz son of Sadiq, caste Muslim Sheikh, resident of Kot Ahmad Yar, in the light of bulb. Other people also gathered at the spot and rescued them from the assailants. When Azmat Bibi was attended, she was found to have succumbed to the injuries. The complainant stated that the occurrence had been committed by the accused persons in furtherance of their common intention.
4. On 26.12.2005, Ibrahim Naseem, S.I./Investigating Officer (CW-2). was on patrolling duty at Chowk Bahial, where Muhammad Yaqoob, complainant (PW-1) met him and got recorded his statement (Exh.CW -2/A) which was read over to him by the Investigating Officer, who signed the same in token of its correctness. The Investigating Officer sent the complaint to the police station for registration of formal FIR through Muhammad Younas constable.
On the basis of which, formal FIR (Exh.CW -2/B) was chalked out by Bashir Ahmad , 472/HC (CW-4). Thereafter the Investigating Officer proceeded to the place of occurrence, prepared injury statement (Exh. CW-2/E) and inquest report of Azmat Bibi (Exh.CW -2/F). The Investigating Officer handed over the .4lead body of the deceased to Muhammad Sharif 164/C, PW, for escort ing the same to the mortuary for post-mortem examination. Due to fall of night, the proceedings of the investigation were stopped by the Investigating Officer and were again initiated on the next morning. After post-mortem examination, Muhammad Sharif constable, produced last worn clothes of the deceased. The Investigating Officer prepared injury statement of Muhammad Yaqoob, Muhammad Saqlain and Muhammad Munawar , injured PWs, (Exh.CW -2/C, Exh.CW -2/D and Exh.CW -2/E) respectively and sent the injured persons for their medical examination. On 27.12.2005, the Investigating Officer prepared rough site plan of the place of occurrence (Exh.CW -2/F). The Investigating Officer searched for the accused, but in vain. On 30.12.2005, the Investigating Officer summoned Jameel Akhtar Saharan, draftsman (CW-1) who on the pointation of the PWs and directions of the Investigating Officer took rough notes from the place of occurrence and prepared scaled site plan (Exh.CW -1/A) and (CW-1/B). On 01.03.2006, the Investigating Officer arrested Ahmad Yar, Ghazanfar and Shahzad accused and obtained their physical remand from the learned Illaqa Magistrate. On 15.03.2006, during the course of investigation, after making disclosure Shahzad (accused) got recovered sota, which was taken into possession by the Investigating Officer vide recovery memo. (Exh.CW -2/G). The Investigating Officer prepared rough site plan of the place of recovery of the sota.
5. During the course of investigation, the Investigating Officer found the appella nts guilty and submitted report under Section 173, Cr.P.C., to the Court of competent jurisdiction, which was en-routed through learned Illaqa Magistrate as provided under Section 190(2), Cr.P.C. The learned Additional Sess ions Judge, Chiniot in terms of order dated 08.10.2008, framed charge against the appellants. The appellants pleaded not guilty and claimed trial.
Prosecution in order to substantiate its case produced as many as five (5) witnesses. However statements of Jamil Akhtar , draftsman, Ibrahim Naseem, S.I/Investigating Officer, Muhammad Ghaus , 45/C, Bashir Ahmad, 472/HC, Muhammad Sharif 164/C and Muhammad Mumtaz, ASI, were recorded as CW -1 to CW -6 respectively .
6. Muhammad Yaqoob, injured (PW-1) is the complainant of this case. Muhammad Munawar (PW-2) and Muhammad Saqlain (PW-3) are injured PWs of this case. Jamil Akhtar Saharan, draftsman (CW-1) had prepared scaled site plan of the place of occurr ence. Investigation of this case was carried out by Ibrahim Naseem, S.I./Investigating Of ficer (CW -2).
7. On 27.12.2005, Lady Dr. Miftah Shaukat (PW-5) had conducted the post-mortem examination upon the dead body of Mst. Azmat Bibi (deceased) and found following injuries on her person:
1. Contusion 20 x 20 cm. on left side of neck and shoulder and left ear and underlying muscles of neck were congested with fracture dislocation at the level of C/5,6. After conducting post-mortem examination, the doctor arrived at the following opinion: "Death in my opinion was due to shock caused by injury to vital organs i.e. spinal cord, leading to cardio-pulmonary arrest and death. Injury was ante mortem caused by blunt weapon and sufficient to cause death in ordinary course of nature.
Probable time that elapsed between death and injury was immediate. On 27. J2.2005, Dr. Muhammad Shareef (PW-4) medically examined Muhammad Yaqoob, complainant/injured and found following injuries on his body:
1. A contusion of 4 cm. x 2 cm. on the right side of face below right eye.
2. A contusion of 6 x 3 cm on the back of right shoulder .
3. A contusion of 3 x 2 cm on the back of left hand outer part.
On the same day, Dr. Muhammad Shareef (PW-4) medically examined Muhammad Saqlain, injured and found following injuries on his body:
1. A lacerated wound 1/2 x 1/2 cm muscle deep on the inner side of lower lip, bleeding occurred from the wound.
On the same day, Dr. Muhammad Shareef (PW-4) also medically examined Muhammad Munawar , injured and found following injuries on his hody:
1. A lacerated wound 2 x 1/2 cm skull deep on the right side of head. Bleeding occurred from the wound and clothes were blood stained".
Statements of rest of the prosecution witnesses are formal in nature.
8. On 08.01.2010, learned ADPP gave up Muhammad Ali, 569/C and Bshir Ahmad, 467/HC, PWs being unnecessary .
9. The appellants were examined under Section 342, Cr.P.C., wherein Ahmad Yar alias Ahmad and Ghazanfar (appellants) opted not to appear as their own witness in terms of Section 340(2), Cr.P.C. in disproof of the allegations levelled against them in the prosecution evidence, however opted to adduce defence evidence.
Whereas Shahzad (appellant) neither opted to appear as his own witness in terms of Section 340 (2), Cr.P.C. nor opted to adduce defence evidence.
While replying to the question why this case against him and why the PWs deposed against him, Almiad Yar alias Ahma (appellant) deposed as under: "All the PWs are closely related with each other . The complainant is a notorious person and multiple cases have been registered against him and by him against different people. The complainant was not satisfied with the investigation and filed a private complaint which was dismissed then he filed the present complaint showing his dissatisfaction on both counsel engaged by him. On the day of occurrence, Munawar PW s/o complainant on the barking of stray dog became un-balanced and fell down from his bicycle in front of my house, at that moment I came out from my house whereupon Munawar PW started abusing me. I asked him that my status is like your father but he did not stop abusing, then I gave him slaps. After some momen t the complainant party to take revenge attacked on my house when I was away from my house to offer Maghrab prayer in the mosque, when I returned, I saw the complainant and his family members hurling, abusing and threatening and they were separated by my brother and some other persons. In the meanwhile Munawar and his brother Saqlain PWs brought guns from their house alongwith Hayat and Wasif sons of Falak Sher Baral. At that time Mst. Azmat Bibi deceased fall on the hard surface and received injuries on her back. She was immediately shifted to her house in alive condition but after some time she was declared to have died. The injuries on the persons of PWs and the deceased were not inflicted with my weapon; the injuries are fabricated and self-made. The dead body was taken to the police station and after deliberation and consultation. The police in collusion with the complainant party , my personal enemies, false and fabricated case was registered against me and my entire family members."
While replying to the similar question, Shahzad (appellant) deposed as under: "I endorse the statement of Ahmad Yar my co-accused recorded today in the Court in my presence."
To the similar question, Ghazanfar (appellant) replied as under: "I endorse the statement of Ahmad Yar my co-accused recorded today in the Court in my presence."
In defence evidence, Ahmad Yar (accused) produced attested copy of FIR No. 108/2000 (Exh.DD), attested copy of FIR No. 10/2000 (Exh.DE), attested copy of FIR No. 111/2000 (Exh.DF) and attested copy of FIR No. 114/2000 (Exh.DG).
10. Learned trial Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms.
11. Learned counsel for the appellants while opening his arguments contended that the impugned judgment has been passed by the learned trial Court in a slipshod manner without adverting to the facts of the case, which even other-wise is in sheer violation to the evidence available on the record. It was argued that no specific time of occurrence had been mentioned in the crime report by the complainant, rather the same had been incorporated as at about "Maghrib". It was contended that though Shahzad and Ghazanfar (appellants) have been ascribed the role of inflicting sota blows upon Muhammad Munawar and Muhammad Yaqoob, injured PWs and Ahmad Yar alias Ahma (appellant) to Mst. Azmat Bibi (deceased), but the same is against the facts. Learned counsel went on arguing that no recovery has been affected from Ghazanfar and Ahmad Yar Ali Ahma (appellants). So far as recovery of sota from Shahzad (appellant) is concerned, learned counsel argued that the same has been planted by the Investigating Officer only in order to strengthen the prosecution case. Learned counsel for the appellants emphasized that keeping in view the dimension of injury sustained by Mst. Azmat Bibi, which had been ascribed to Ahmad Yar alias Ahma (appellant), the same is not supported by medical evidence. It was argue d that even the Medical Officer had admitted that the said injury could not be caused with one blow; rather the same was result of multiple blows. It was contended that Mst. Nusrat Bibi, Ansar and Ghazanfar , co-accused, had been acquitted of the charge by the learned trial Court on the basis of same set of evidence and even no appeal had been preferred against them by the prosecution. It was argued that there are glaring contradictions in the statements of the prosecution witnesses which shatter their testimony . In such circumstances, it was argued that the prosecution had badly jailed to substantiate its case against the appellants beyond reasonable doubt through leading cogent and confidence inspiring evidence; therefore, they are entitled to their clean acquittal from this case.
12. On the other hand, learned Deputy Prosecutor General while controverting the assertions made by learned counsel for the appellants supported the impugned judgment passed by the learned trial Court. It was argued that the appellants are named in the crime report with specific allegation. It was submitted that the prosecution witnesses had fully implicated the appell ants with the crime alleged. It was contended that recovery of sota has been made from Shahzad (appellant). It was next submitted that during the course of investigation, the appellants were found guilty and their names have been placed in Column No. 3 of the report under Section 173, Cr.P.C. In such backdrop, it was argued that the learned trial Court while taking note of each and every aspect of the case has recorded conviction/sentence against the appellant, which does not invite any interference by this Court.
13. Arguments advanced from both sides have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the appellants, as well as, learned Deputy Prosecutor General.
14. It is cordial principle of law that each criminal case has its own peculiar facts and circumstances and that has to be weighed on the judicial parlance while taking into consideration all the facts and circumstances brought-forth.
Initially Muhammad. Yaqoob, complainant (PW-1) got lodged case FIR No. 290, dated 26.12.2005, offence under Sections 302, 148, 149, PPC, with Police Station, Kandiwal, qua murder of his wife Mst. Azmat Bibi and causing injuries to him besides Muhammad Munawar , Saqlain, PWs, by the appellants along with their co-accused.
However , being dissatisfied with the investigation carried Out by the local police, the complainant preferred the instant private complaint. There is allegation against Ahmad Yar alias Ahma (appellant) that he inflicted sota blow at the back of neck of Mst. Azmat Bibi (deceased), whereas allegation against Shahzad (appellant) is that he inflicted sota blow at the forehead of Muhammad Munawar , injured PW, and Ghazanfar (appellant) has alleged to have caused sota blow below the right eye of the complainant. So far as the case of Ahmad Yar alias Ahmad (appellant) is concerned. Admittedly he has been attributed the role of infliction of sole sota blow to the deceased, but the locale of injury sustained by Mst. Azmat Bibi (deceased) speaks otherwis e and the same do not coincide with the same. The said injury reads as follows: I. Contusion 20 x 20 cm. on left side of neck and shoulder and left ear and underlying muscles of neck were congested with fracture dislocation at the level of C/5, 6.
The locale of injury clearly reflects that the same could not be result of sole sota blow. As per averments of the crime report as well as the private complaint preferred by the complainant, neither Ahmad Yar alias Ahma (appellant) has repeated the .sota blow nor any other co-accused has been alleged to have caused sota blow to the deceased. Even otherwise, Lady Dr. Miftah Shaukat (PW-5) who had conducted post-mortem examination upon the dead body of the deceased, during the course of cross-examination has admitted that the said injury could not be caused with one blow; rather the same was result of multiple blows. The relevant portion of her statement is as under: "----Injury No. 1 on the person of the deceased could not be caused with one blow it was result of multiple blows.
Since the Injury No. 1 was a contusion mark in the area of 20 x 20 cm this injury could not be inflicted by multiple blows side by side, therefore, it could not be described separately----."
The contradiction in ocular and medica l account to the extent of Ahmad Yar alias Ahma (appellant) alone is sufficient to discard the testimony of the prosecution witnesses to his extent. In such circumstances, the ocular account is belied by medical evidence. Such contradiction makes the prosecut ion case further doubtful to his extend. Reliance in this regard is placed upon the dictum of law laid down by the august Supreme Court of Pakistan in the case of 'Abdul Majid alias Jaidu, etc. versus The State' (NLR 1996 SCJ 148), wherein it has been held as under: "Ocular evidence that injuries to deceased were inflicted by three convicts, would be reliable when it stands corroborated by medical evidence.
Similar view was affirmed by the august Supreme Court of Pakistan in the case of Mst. Jallan versus Muhammad Riaz and others' (NLR 2003 Criminal 577 ), wherein it was observed: "Contradiction between ocular evidence and medical evidence would create doubt in prosecution case benefit of which would go to no one except the accused".
15. Apart from this though the appellant was stated to be armed with sota at the time of alleged occurrence, but it is worth mentioning here that no recovery has been affected by the Investigating Officer during the course of investigation from the appellant, which could substantiate the prosecution version in this regard.
In the instant case after examining the prosecution case from all corners and evaluating it on the touchstone of interpretation of dictum of "safe administration of criminal justice" this Court has arrived at the conclusion that in this case the prosecution has miserably failed to establish its case against Ahmad Yar alias Ahma (appellant) beyond reasonable doubt.
16. Moreover , it is established principle of law that for 3xtending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable doubt in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed in the ratio deciden di of august Supreme Court of Pakistan in the cases of "Tariq Pervez vs. The State " (1995 SCMR 1345 ) "Riaz Masih clias Mithoo vs. The State " (1995 SCMR 1730 ) and "Muhammad kkram vs. The State (2009 SCMR 230). In the case of "Tariq Pervez vs. "The State " (1995 SCMR 1345 ), the august Supreme Court of Pakistan Las held as under: "----Art.4--Benefit of doubt, grant of--Forgiving 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".
17. The nutshell of the above discussion is that the prosecution as badly failed to substantiate its case against the appellant to the hilt and the learned trial Court was not justified in convicting him. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover , it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial Court in terms of judgment dated 12.04.2010, Crl. Appeal No. 1086/2010 is accepted to the extent of Ahmad Yar alias Ahma (appellant). He is on bail. His surety is discharged.
18. So far as the case of Shahzad and Ghazanfar (appellants) is concerned. Admittedly allegation against Shahzad (appellant) is that he inflicted sota blow at the forehead of Muhammad Munawar , injured PW, and Ghazanfar (appellant) has alleged to have caused sota blow below the right eye of the complainant. Muhammad Munawar as well as Muhammad Yaqoob, both injured PWs while appearing in the witness box as (PW-1 and PW-2) respectively have fully implicated the appellants with the commission of the offence alleged against them. Dr. Muhammad Sharif (PW-4) had medically examined both these injured PWs the ocular account to their extent is fully corroborated by medical evidence. Recovery of sota has also been affected from Shahzad (appellant). I, thus, see no infirmity in the impugned judgment to the extent of their conviction and find no ground or justification to warrant interference in the same, which is accordingly maintained. However , it is worth mentioning here that both these appellants have only been sentenced to two years R.I. As per contention of learned counsel for the appe llants, both the appellants have served sentence of about nine months each. Moreover , they are facing the agony of protracted trial for the last more than ten years. Furthermore, main accused of this case namely Ahmad Yar alias Ahma has been acquitted of the charge. Mst. Nusrat Bibi, Ansar and Ghazanfar , co-accused have already been acquitted of the charge by the learned trial Court on the basis of same set of evidence.
19. For the foregoing reasons, this Court is persuaded to reduce the sentence of Shahzad and Ghazanfar (appellants) to one already undergone by them. However , their sentence of daman and the effect in case of default in the same would remain as directed by the learned trial Court. With the maintainin g their conviction and the above reduction in their sentence, the instant criminal appeal is dismissed to the extent of Shahzad and Ghazanfar (appellants).