1. RAZA ALI KHAN, J.---The above titled criminal appeal has been directed under Section 25 IPL, whereby judgment passed by the learned District Criminal Court, Sudhnooti/Pallandri, dated 21.09.2007, through which accused respondents Nos.1, 2 and 4 to 8 have been acquitted of the charge by extending them the benefit of doubt, whereas accused respondent No.3 has been convicted under section 337-D, A.P.C. and sentenced to 10 years' simple imprisonment and punishment of Arsh 1/3 of Diyyat, has been called into question.
2. Facts forming background of the captioned appeal are that on 15.11.2001, Muhammad Latif son of Abdul Khan, complainant, filed a written application Exh.PA, at Police Station Trarkhel, stating, therein, that the applicant is resident of village Papynar Balyala. Today, i.e. 15.11.2001 the applicant went to Trarkhel Bazar for some personal work and when he reached at Dana Bazar he came to know that his real brother Muhammad Sagheer Khan in a dying position has been taken to Trarkhel and his real brother Muhammad Akhtar Hussain has been murdered. On query he was informed that today i.e. 15.11.2001 at 4:45 p.m. Muhammad Asif, Taj Muhammad, Basit, Rizwan sons of Muhammad Sadiq, Resham Jan wife of Muhammad Sadiq, Mst. Zakia Begum, Saima daughters of Muhammad Sadiq, Muhammad Sadiq son of Sham-u-Din Caste Sudhan resident of Balyala Papynar with common intention called Muhammad Sagheer at their home and when Muhammad Sagheer reached at their home the accused who were armed with knives, sticks and hatchets launched attack upon him.
3. Muhammad Asif inflicted knife blow with the intention to kill to Muhammad Sagheer at his belly. On hue and cry Akthar Hussain went to rescue Muhammad Sagheer. Accused Muhammad Asif inflicted him knife blows which hit him at his belly. Accused Basit also inflicted injury with knife/dagger in the belly of Sagheer. Muhammad Sadiq hit Muhammad Sagheer with butt/poll of hatchet at his head. Taj injured Akhtar Hussain with sword at his legs. The occurrence was witnessed by Muhammad Asghar, Tanveer, Jawad, Fazal Husain and other people of locality. The motive behind the occurrence was stated that the complainant got registered FIR against accused Basit. It was also stated that the accused committed the occurrence in connivance with Nazak Hussain son of Kamal Khan.
4. On this report FIR No.41/2001 Exh.PR was registered at Police Station Trarkhel in the offences under sections 302/324, 147/148, 149 and 109, A.P.C. on 15.11.2001. After completion of formal investigation the police submitted report under section 173, Cr.P.C. before District Criminal Court, Pallandri on 11.12.2013 in the offences under sections 302, 324, 147, 148, 109 and 337-D, A.P.C. The statements of the accused under section 265-D, Cr.P.C. were recorded on 12.03.2002. The accused pleaded not guilty and claimed to be tried, whereupon, the prosecution was asked to lead evidence. The prosecution out of 24 witnesses cited in the challan produced 21 witnesses. At the completion of prosecution evidence, the statements of the accused under section 342, Cr.P.C. were recorded on 23.08.2005, who again denied the prosecution allegations and claimed innocence, however, refused to produce evidence in defence nor recorded their statements under section 340(2), Cr.P.C. At the conclusion of the trial, the learned District Criminal Court Pallandri vide judgment dated 01.09.2005 convicted accused Basit and awarded him 10 years simple imprisonment under section 337, A.P.C. and acquitted the other accused, except accused Asif who was absconder, by extending them the benefit of doubt. On appeal, this Court vide judgment dated 24.05.2007 remanded the case to the trial Court for fresh decision after reexamining the accused persons under section 342, Cr.P.C. in accordance with law. The learned trial Court re-examined accused respondents under section 342, Cr.P.C. on 28.07.2007 and after providing the right of hearing to the parties vide impugned judgment dated 21.09.2007 convicted accused Basit under section 337-D, A.P.C. and awarded him 10 years' simple imprisonment and punishment of Arsh 1/3 of Diyat amount and acquitted the other accused except Muhammad Asif, (absconder), by extending them the benefit of doubt. The captioned appeal has been filed for conviction of acquitted accused respondents as well as absconder Muhammad Asif, and for enhancement of sentence awarded to accused Basit.
5. The learned counsel for the appellants argued that accused respondents are members of a Family who with common object called deceased Muhammad Sagheer at their home and launched attack upon him, hence, being members of unlawful assembly all the accused were equally liable for murder of deceased Akhtar Hussain and Muhammad Sagheer who sustained injuries inflicted by accused Basit. The learned Advocate contended that the occurrence was witnessed by eye-witnesses of the occurrence who also appeared as witnesses and supported the prosecution story. The learned Advocate further contended that recoveries of weapons of offences were also proved through reliable evidence. He submitted that medical evidence is also supportive to the prosecution story and motive behind the occurrence is also proved. The learned Advocate stated that place of occurrence and presence of accused at the place of occurrence is admitted. The learned Advocate further stated that the trial Court has failed to appreciate the evidence in its true perspective and reached at wrong conclusion which is liable to be set-aside and the accused respondents are equally liable for the murders of Akhtar Hussain and Muhammad Sagheer, hence, are liable to be convicted as such.
6. The learned counsel for the respondents contended that in fact it was the complainant party who launched attack on the accused party at their home and the accused/respondents also sustained serious injuries in the same incident but the same were not investigated by the investigating agency. The learned Advocate submitted that the statements of prosecution witnesses are contradictory in nature which creates serious doubt. He further submitted that no independent witness has been associated and all the witnesses produced by the prosecution are related and interested witnesses. The learned Advocate stated that statement of injured Muhammad Sagheer has not been appreciated the evidence but despite observing that the prosecution has proved its case beyond any reasonable doubt has not awarded sentence of Qisas, which he deserves, therefore, the appeal filed by the complainant may be accepted and accused Muhammad Ilyas may be awarded death sentence.
7. The learned AAG while adopting the arguments advanced by the learned counsel for the complainant added that in cases where any sort of contradictions are found in ocular and medical evidence the Court has to give primacy to the ocular evidence. He pressed into service that as the prosecution proved its case beyond any shadow of doubt, therefore, by accepting the appeal filed by complainant, convict appellant may be awarded capital punishment.
8. We have heard the learned counsel for the parties and gone through the record of the case with utmost care as well as case law cited by the learned counsel for the convict appellant.
9. Adverting to the contention of the learned counsel for the convict-appellant that all the material witnesses are related witnesses, thus, are highly interested witnesses, therefore, their evidence must be discarded, we find that it is now settled by series of judgments of the superior Courts that in such circumstances the evidence of witnesses must be (sic.)
10. At the very out set it may be observed that vide impugned judgment only accused Basit was convicted, who after serving the awarded punishment has been released and appeal filed by him against his conviction was disposed of by this Court vide judgment dated 16.06.2016 on the ground that the same has become infructuous, hence, only the question whether the acquittal of accused respondents Nos.1, 2, 4 to 8 is justified and whether the punishment awarded to accused Basit is liable to be enhanced, required resolution by this Court.
11. The learned counsel for the appellants mainly pressed into service that the accused respondents being members of unlawful assembly are equally liable for the murders of Akhtar Hussain and Muhammad Sagheer.
12. Under section 149, P.P.C. every member of unlawful assembly is equally liable for the offence committed by a member of unlawful assembly. For ready reference section 149, P.P.C. is reproduced as under:- "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
13. The ingredients necessary for declaring an assembly of five or more than five persons an unlawful assembly are enumerated in section 141, P.P.C. For proper appreciation section 141, P.P.C. is reproduced as under:- "141. Unlawful assembly.---An assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is:-- First. To overawe by criminal force, or show of criminal force, the Central or any Provincial Government or Legislature, or any public servant in the exercise of the lawful power of such public servant; or Second. To resist the execution of any law, or of any legal process; or Third. To commit any mischief or criminal trespass, or other offence; or Fourth. By means of criminal force, or show of criminal force to any person to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way, of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do.
14. Explanation. An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly".
15. A plain reading of section 141, P.P.C. reproduced hereinabove, reveals that most important ingredients of an offence under section 148, P.P.C. are:-
(a) that the accused shall be a member of an unlawful assembly as defined under section 141', P.P.C.
(b) that the accused shall be armed with a deadly weapon or anything which, if used as a weapon of offence, is likely to cause death;
(c) that the members of an unlawful assembly must have a common object;
(d) that the accused is found guilty of rioting.
16. So, if all or any of the above mentioned ingredients are missing, one cannot be convicted under section 149, P.P.C. According to the prosecution story accused respondents with common object called Muhammad Sagheer, brother of the complainant at their home and launched attack on him and on hue and cry Akhtar Hussain, brother of the complainant went to rescue Muhammad Sagheer, who was inflicted injuries by the accused party and murdered him. It is well settled principle of law that to prove that the offence has been committed with common object, the prosecution has to prove the provisions of section 149, P.P.C. through tangible and B sufficient evidence and not from conjectures and speculations. In case titled Muhammad Altaf and 5 others v. The State (2002 SCMR 189) the August Supreme Court of Pakistan observed that the word "knew" used in section 149, P.P.C. requires that it must be proved by tangible and sufficient evidence that the offence was committed in prosecution of the common object of the assembly. The relevant observations recorded at page 199 of the report are reproduced as under:- "The word "knew" occurring in the second part of section 149, P.P.C. requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations that the offence was committed in prosecution of the common object of the assembly. It would, therefore, not be sufficient to show that the accused ought to have known or might have known and that they had reason to believe that the common object of the unlawful assembly was to commit murder."
17. In our view, the evidence led by the prosecution in support of charge under section 149, A.P.C. was not sufficient to prove the charge of common intention/ object of the accused. The presence of accused persons at the place of occurrence is natural and the prosecution could not produce any evidence from which it could be ascertained that accused had any preplanning to murder Akhtar Hussain and Muhammad Sagheer. The prosecution witnesses did not depose in their statements that the occurrence was pre-planned and even the allegation under section 149, P.P.C. was not put to the accused in their statements recorded under section 342, Cr.P.C., hence, without providing a right of defence to the accused, the same cannot be read against them. The motive set up by the prosecution that complainant earlier got registered a case against accused Basit and to take revenge the accused party pre-planned the murder of deceased Akhtar Hussain is unbelievable and not proved because if the accused party was annoyed from the registration of case on behalf of complainant, they might planned to murder the complainant. Even otherwise, the prosecution witnesses did not utter any word regarding the motive behind the occurrence in their statements, thus, motive of the occurrence is also not proved. The time of occurrence, place of occurrence, the manner of occurrence as well as weapons used in the incident suggest that there was no pre-planning for the murder of Akhtar Hussain or Muhammad Sagheer rather the occurrence took place suddenly.
18. In the circumstances of this case, the conditions necessary for applicability of section 149, P.P.C. are not fulfilled, hence, section 149, P.P.C. cannot be made applicable to the facts of the case and all the accused would be liable to punishment for the act committed by him/her in the incident, thus, the argument raised by the learned counsel for the appellants that all the accused were equally liable for the murder of Akhtar Hussain and Muhammad Sagheer being members of unlawful assembly has no substance in it and is repelled.
19. Now the question whether the prosecution has proved its case narrated in the FIR beyond any shadow of doubt required our deliberation. As per contents of FIR accused Muhammad Asif, (who is absconder and his case is not before us), inflicted knife blow to Muhammad Sagheer and deceased Akhtar Hussain also received injuries due to inflicting knife blows by accused Muhammad Asif. It is also stated in the FIR that accused Basit also hit knife blow in the belly of Muhammad Sagheer. Accused Sadiq hit Muhammad Sagheer at his head with butt of hatchet and accused Taj, Resham Jan, Zakia, saima injured Muhammad Sagheer and Akhtar Hussain. As per FIR Taj inflicted sword injury to deceased Akhtar Hussain, however, as per recovery memo hatchet was recovered on the pointation of Taj, hence, the case to the extent of injury caused by Tajj Muhammad and recovery of hatchet on the pointation of accused Taj Muhammad has become doubtful. The injuries allegedly inflicted by Muhammad Sadiq, Taj, Resham Jan, Zakia and Saima on the body of Akhtar Hussain and Muhammad Sagheer are not supported by medical reports because as per medical reports no injury was received by Akhtar Hussain and Muhammad Sagheer, except the wounds caused by blows of knife/dagger or hatchet, thus, mere on the statements of prosecution witnesses, which are not supported by medical evidence the accused cannot be convicted. Medical Officer E.A. Centre PIMS Islamabad observed regarding medical report of Sagheer that he was brought from A.K. After being referred from MDS Trarkhel on 15.11.2001 to PIMS as a case of stab wound chest (lower side), after which he developed infection. It is well settled principle of Criminal Jurisdiction that where there are contradictions between medical evidence and ocular evidence, ocular evidence can be crystallized to the effect that though ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibilities of the ocular evidence being true, the ocular evidence may be disbelieved.
20. Ocular evidence had to believed but when the ocular account itself was inconsistent, contradictory and not confidence inspiring, then no reliance could be placed thereupon. In this regard, reliance can be placed on 2014 YLR 989.
21. Muhammad Fazal, P.W. 7, who was shown eye-witness of the occurrence simply stated in his statement that when he reached at spot Akhtar Hussain, Jawad and Tanveer were already on the place of occurrence. He further stated that Muhammad Sagheer was injured and Akhtar Hussain was in a critical position. He also admitted that he did not see the occurrence.
22. Muhammad Tanveer P.W.9 deposed in his statement that when he, Zaheer and Jawad went to the house of Muhammad Sadiq, accused Asif hit Akhtar Hussain knife blow at his belly, thereafter, Asif, Sadiq, Basit and Rizwan took Akhtar Hussain at Doga and accused Asif hit knife blows to Akhtar Hussain. During cross- examination he deposed that the place of occurrence was unseen from the place where he was standing, hence, his statement is self contradictory and in this regard he cannot be treated as eye-witness of the occurrence.
23. Asad Khan, P.W. 16, who was also shown as eye-witness of the occurrence deposed totally a different story and stated that Muhammad Sadiq hit hatchet blow at the head of Muhammad Sagheer, who fell down and on raising hue and cry Akhtar Hussain reached there. During cross-examination he admitted that where he was grazing goats, the place of occurrence was unseen. In our considered view the prosecution has failed to prove the charge against the acquitted accused/respondents and prosecution evidence to the extent of accused/respondents except accused Basit is contradictory in nature, thus, the allegation against accused respondents Nos.1, 2 and 4 to 8 is not proved and the contradictions in the statements of prosecution witnesses create serious doubts and it is well settled principle of law that benefit of doubt is always extended in favour of the accused), thus, the Court below rightly acquitted accused respondents Nos.1, 2 and 4 to 8.
24. It is also well settled principle of law that after acquittal of an accused by a Court of competent jurisdiction, he enjoys double presumption of innocence and an acquittal order can be recalled if the Court comes to the conclusion that the same is capricious, fanciful, perverse and arbitrary or has been passed against the settled norms of administration of justice. Reliance in this regard can be placed on judgment of Hon'ble Supreme Court of Azad Jammu and Kashmir titled "Nasrullah v. Shamim Akhtar and 4 others" 2010 PCr.LJ 1623. The relevant observations recorded at page 1628 are reproduced as under:-- "We may, however, repeat our time and again recorded findings that once an accused is acquitted by the trial Court, the double presumption of innocence rests in him, which cannot be recalled by finding fault in shape of minor discrepancies and irrelevant contradictions in the prosecution evidence . "
25. The same view again has been reiterated by the Hon'ble Supreme Court of Azad Jammu and Kashmir in case titled Ghazanfar Ali v. The State and another (2015 SCR 1042) and at page 1058 held as under:- "It is spelt out from the record that both the Courts below while passing the acquittal order have assigned the strong reasons and it is consistent view of the apex Court of Pakistan as well of this Court that an acquittal order can only be interfered with or set aside if the Court comes to the conclusion that the same is capricious, fanciful, perverse and arbitrary or has passed against the settled norms of administration of justice, whereas, no such element is found in the judgments passed by both the Courts."
26. After going through the evidence brought on record and impugned judgment we are of the view that no such eventuality for recalling the acquittal order is found rather the impugned judgment is well reasoned and based on proper appreciation of evidence.
27. So far case of accused Basit is concerned, as per FIR he hit knife blow to Muhammad Sagheer at his chest. As per medical report deceased Muhammad Sagheer received injury at his chest.
28. Though Sagheer after sustaining injury survived for three years and subsequently died, however, the prosecution failed to record his statement and even postmortem of Muhammad Sagheer was not conducted.
29. The prosecution witnesses also supported the allegation that Basit inflicted knife blow to Muhammad Sagheer at his chest and the weapon of offence (knife/dagger) was also recovered on the pointation of the accused.
30. However, as the prosecution failed to record statement of Muhammad Sagheer who as per prosecution story was injured by accused Basit, therefore, we do not find any ground to enhance the sentence awarded to accused Basit by the trial Court.
31. In view of above, we are satisfied with the appreciation of evidence evaluated by learned trial Court while passing the impugned judgment dated 21.09.2007, which is based on sound reasons having been assigned by the trial Court while recording the acquittal of the accused/respondents, hence, it does not call for any interference by this Court, consequently, the instant appeal merits no consideration and is dismissed accordingly.