TARIQ SALEEM SHEIKH, J.--This appeal under section 410, Cr.P.C. is directed against judgment dated 6.6.2016 passed by the learned Additional Sessions Judge, Bahawalnagar, in cross-version under sections 452, 337-A(i), 337-F(i), 337-F(v), 337-L(2), 148, 149, P.P.C. recorded in case FIR No.659/2014 dated 24.9.2014 registered at Police Station Minchanabad, District Bahawalnagar.
2. On 20.10.2014, cross-version was recorded on the statement of Zahida Bibi (PW-3) vide Zimni No.7. She stated that on 17.6.2014 at about 03:00 p.m. she, her mother Sardaran Bibi (PW-4) and her husband Muhammad Yasin (PW-5) were present in their house. All of a sudden Nazeer Ahmad, Muhammad Mazhar, Muhammad Iqbal, Muhammad Babar, Muhammad Zafar and Muhammad Azam armed with Sotas, and Muhammad Ahmad armed with pistol trespassed into their house. Muhammad Ahmad raised a Lalkara that if any one make a noise he would be shot dead. Then Nazeer Ahmad and Muhammad Mazhar gave Sow blows to Sardaran Bibi and Muhammad Yasin respectively on their heads. Muhammad Iqbal inflicted a Sota blow on the chest of Muhammad Yasin while Muhammad Akhtar alias Babar gave him a Sota blow on his arm. Nazeer Ahmad whacked Zahida Bibi on her right hand and Muhammad Zafar on her left arm. In the meanwhile, her brother Khadim Hussain came to rescue them but Nazeer Ahmad inflicted two successive Sota blows on left side of his head and left arm. Zahida Bibi further stated that their hue and cry attracted people from the vicinity to the spot, including PWs Ta'seen and Khadim Hussain son of Muhammad Sharif (given up), who rescued them. The accused had gone about 4/5 acres after leaving the house when they came across her in-laws who were coming to her after hearing about the attack. The fight renewed during which Faisal Nazeer suffered an injury and later on died. The Complainant alleged that Khan Muhammad and Fateh Muhammad had instigated the accused to commit the offence.
3. Nazar Hussain/ASI (PW-6) investigated the cross-version and found that only Nazeer Ahmad and Muhammad Mazhar were involved. Report under section 173, Cr.P.C. was submitted accordingly with the names of Muhammad Iqbal, Muhammad Zafar, Muhammad Ahmad, Muhammad Akhtar alias Babar, Khan Muhammad, Fateh Muhammad and Muhammad Azam in Column No.2 thereof.
4. The learned Additional Sessions Judge summoned all the accused for trial and indicted them on 3.7.2015. All of them denied the charge and claimed trial.
5. The prosecution examined nine witnesses to prove the charge. Complainant Zahida Bibi (PW-3), Sardaran Bibi (PW-4), and Muhammad Yasin (PW-5) who were stated to have been injured gave the ocular account of the incident. Ismail (PW-9) testified about the recovery of Sotas P-1 and P-2 at the instance 01 Muhammad Mazhar and Nazeer Ahmad. Medical evidence was furnished by Dr. Muhammad Khalid (PW1), Lady Dr. Safia Karim (PW-2) and Dr. Haseeb Ahmad (PW-7). The Investigating Officer, Nazar Hussain/ASI (PW-6), gave details of the investigation and the evidence he collected in this case. The remaining witnesses were formal in nature.
6. On the completion of prosecution evidence the learned trial Court examined the accused under section 342, Cr.P.C. They denied the allegations levelled against them and professed innocence. They maintained that Zahida Bibi had concocted a false story to counter FIR No.659/2014 lodged by Nazeer Ahmad which was the correct version of the incident. They neither got their statements recorded on oath under section 340(2), Cr.P.C. nor examined any witness in their defence.
7. On the conclusion of the trial, vide judgment dated 6.6.2016, the learned Additional Sessions Judge acquitted Muhammad Ahmad, Muhammad Akhtar alias Babar, Khan Muhammad, Fateh Muhammad and Muhammad Azam but convicted and sentenced Nazeer Ahmad, Muhammad Iqbal, Muhammad Zafar and Muhammad Mazhar as under: Nazeer Ahmad: i) Convicted under section 452, P.P.C. and sentenced to rigorous imprisonment for five years with fine of Rs.10,000/- and in default thereof to undergo simple imprisonment for a further period of six months. ii) Convicted under section 337-A(i), P.P.C. and sentenced to pay Daman in the sum of Rs.10,000/- to injured Sardaran Bibi.
Muhammad Iqbal: i) Convicted under section 452, P.P.C. and sentenced to rigorous imprisonment for five years with fine of Rs.10,000/- and in default thereof to undergo simple imprisonment for a further period of six months. ii) Convicted under section 337-A(i), P.P.C. and sentenced to pay Daman in the sum of Rs.10,000/- to injured Muhammad Yasin.
Muhammad Zafar: i) Convicted under section 452, P.P.C. and sentenced to rigorous imprisonment for five years with fine of Rs.10,000/- and in default thereof to undergo simple imprisonment for a further period of six months. ii) Convicted under section 337-F(i), P.P.C. and sentenced to pay Daman in the sum of Rs.10,000/- to injured Zahida Bibi.
Muhammad Mazhar: i) Convicted under section 452, P.P.C. and sentenced to rigorous imprisonment for five years with fine of Rs..10,000/- and in default thereof to undergo simple imprisonment for a further period of six months. ii) Convicted under section 337-F(v), P.P.C. and sentenced to pay Daman in the sum of Rs.50,000/- to injured Zahida Bibi.
All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was also extended to them.
8. Through this appeal Nazeer Ahmad, Muhammad Iqbal, Muhammad Zafar and Muhammad Mazhar (hereinafter individually referred to as the "Appellant" and collectively as the "Appellants"), have challenged their conviction and sentence before this Court. Neither the State nor Complainant Zahida Bibi has assailed acquittal of those who have been acquitted.
9. In support of this appeal the learned counsel for the Appellants contended that the prosecution case was false and concocted. The incident did not take place in the manner alleged by Complainant Zahida Bibi (PW-3), Sardaran Bibi (PW-4) and Muhammad Yasin (PW-5). The version of Appellant Nazeer Ahmad set out in FIR No.659/2014 was correct. He further contended that the prosecution case was riddled with material contradictions. The version of Zahida Bibi was even in conflict with that of her own brother Khadim Hussain which he got recorded vide Rapat No.14 dated 17.6.2014. The learned trial Court had grossly misread the evidence while recording conviction against the Appellants. Lastly, the Complainant had nominated nine persons in her cross-version out of which five had been acquitted by the learned trial Court and the order of their acquittal had not been challenged. The conviction of the Appellants on the same evidence could not be maintained. The learned counsel prayed that the impugned judgment dated 6.5.2016 be set aside and the Appellants be acquitted of the charge.
10. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the Complainant controverted the above contentions and vehemently opposed this appeal. He contended that the prosecution had proved its case against the Appellants beyond doubt: PWs Zahida Bibi, Sardaran Bibi and Muhammad Yasin were injured in the incident so their presence at the place of occurrence could not be doubted. Their testimony inspired confidence and they were corroborated by medical evidence and recovery of Sotas P-1 and P-2 at the instance of Appellants Muhammad Mazhar and Nazeer Ahmad. He further contended that there was no material contradiction in the prosecution evidence which could benefit the Appellants. He prayed that the Appellants' appeal be dismissed.
11. Arguments heard. Record perused.
12. The occurrence took place in Mauza Bekhanwala, Tehsil Minchanabad, District Bahawalnagar, on 17.6.2014 at about 3:00 p.m. Appellant Nazeer Ahmad lodged FIR No.659/2014 dated 24.9.2014 while Zahida Bibi (PW-3) got her cross-version recorded vide Zimni No.7 dated 20.10.2014 in respect thereof. The prosecution in this cross-version did not plead any motive. It was completely silent on the question as to what motived the Appellants and their acquitted co-accused to attack the complainant party.
13. The prosecution produced Zahida Bibi (PW-3), Sardaran Bibi (PW-4) and Muhammad Yasin (PW-5) for the ocular account. All the three were said to have been injured in the incident.
14. We start with the testimony of Zahida Bibi (PW-3). Astonishingly she deviated from her cross-version set out in Zimni No.7 as mentioned in earlier part of this judgment and introduced new facts in her examination-in-chief.
She deposed that three women were also accompanying the accused when they attacked her and her family.
Two of them belonged to Minchanabad while the third was from Haveli Lakha. When the accused left her house and were going towards the village some "general people" chased and pounced at them at a distance of five acres. One Arshad alias Manna gave Sota blow to Faisal Nazeer (son of Appellant Nazeer Ahmad) which subsequently led to his death. Thereafter, some of her relatives reached the spot and they took her, Sardaran Bibi, Muhammad Yasin and Khadim Hussain to the hospital. She further deposed that the police did not record her version correctly. During cross-examination she denied that her brother Khadim Hussain had made any report to the police regarding the incident. However, the Investigating Officer, Nazar Hussain/ASI (PW-6) contradicted her and deposed that she did not appear before him on 17.6.2014. He also made some startling revelations about Khadim Hussain. Relevant excerpt from his cross-examination is reproduced hereunder: "Mst. Zahida Bibi had not appeared before me before 20.10.2014 and did not submit any application regrding the occurrence at police station. It is correct that Khadim Hussain had informed the local police about the occurrence vide Rapat No.14 dated 17.06.2014, wherein Mst. Zahida Bibi has been shown as one of the injured persons. It is correct that Khadim Hussain had stated vide Rapat No.14 that on the day of occurrence i.e. 17.06.2014 at 03:00 p.m. I was present at my agricultural land where Faisal Nazeer and Nazeer Ahmad while armed with 'Sotas' came there, Faisal Nazeer injured, Mst. Zahida Bibi and Muhammad Yasin, whereas Nazeer Ahmad accused injured Mst. Sardaran Bibi. Bashir Ahmad, Munir Ahmad son of Muhammad Bashir, Fateh Muhammad son of Bashir Ahmad, Muhammad Asghar son of Muhammad Nadeem, Muhammad Nadeem son of Muhammad Siddique, Muhammad Azam son of Noor Muhammad while armed with 'Sota' and 'Danda' attracted to the spot. Bashir Ahmad gave a 'Soti' blow which landed at the forehead of Fida Hussain. Munir Ahmad gave 'Soti' blow which landed on the head of Khadim Hussain. Muhammad Iqbal gave 'Soti' blow and injured Mst.
Zahida Bibi. Muhammad Asghar gave 'Soti' blow, which injured Khadim Hussain. Muhammad Azam gave 'Soti' blow which landed at the arms of Mst. Zahida Bibi. It is correct that Mst. Zahida Bibi also submitted application regarding the same occurrence, which was earlier reported to the police by Khadim Hussain vide Rapat No.14 dated 17.6.2014. Zahida Bibi contended in her application that above mentioned occurrence took place in her house. Time of occurrence was narrated by Mst. Zahida Bibi as well as Khadim Hussain at 03:00 p.m. on 17.6.2014."
15. The above-mentioned facts, including the improvements which she, made in her earlier statement, discredit Zahida Bibi.
16. Sardaran Bibi (PW-4) and Muhammad Yasin (PW-5) are equally untrustworthy. The former admitted in her cross-examination that she joined the investigation two/three months after the incident. On the other hand PW Muhammad Yasin stated that he got his statement recorded under section 161, Cr.P.C. after four/five days.
Although he ventured an explanation that his statement was delayed because he was unconscious, medical evidence disproves it. Dr. Haseeb Ahmad (PW7) categorically stated in his examination-in-chief that Muhammad Yasin's condition was "satisfactory" when he medically examined him on 17.6.2014 at 5:20 p.m. It is settled law that such delay impinges on the credibility of the witness. Reliance is placed on Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), Abdul Khaliq v. The State (1996 SCMR 1553) and Muhammad Khan v. Maula Bakhsh and another (1998 SCMR 570).
17. This is not all. The prosecution version that the Appellants and their co-accused were attacked and beaten by the villagers when they were going back and during that action Faisal Nazeer, the son of Appellant Nazeer Ahmad, received a fatal blow at the hands of one Muhammad Arshad does not ring true to the ears. This appears to be an afterthought and contrived to counter FIR No.659/2014.
18. Notwithstanding the defects in the prosecution evidence discussed above, the learned counsel for the Complainant contended that PWs Zahida Bibi, Sardaran Bibi and Muhammad Yasin should be believed for the reason that they were injured witnesses. We are afraid the contention is misconceived. It is trite that injuries on a prosecution witness only indicate his presence at the spot but what he deposes cannot be accepted as gospel truth. His testimony must be evaluated on its own, merits in accordance with the settled principles of criminal justice. Reliance is placed on Said Ahmad v. Zammured Hussain and 4 others (1981 SCMR 795), Muhammad Hayat and another v. The State (1996 SCMR 1411), Muhammad Pervez and others v. The State and others (2007 SCMR 670), Amin Ali and another v. The State (2011 SCMR 323), Nazir Ahmad v. Muhammad lqbal and another (2011 SCMR 527) and Atta Ullah and 3 others v. The State (2016 YLR 2148).
19. The prosecution also relied on the recovery of Sotas P-1 and P-2 allegedly made from Appellants Muhammad Mazhar and Nazeer Ahmad respectively. Admittedly, both these Sotas were commonplace and not blood stained. They have thus no corroborative value and cannot lend any support to the prosecution case.
20. The medical evidence furnished by Dr. Muhammad Khalid (PW-1), Dr. Safia Karim (PW-2), and Dr. Haseeb Ahmad (PW-7) is of no avail to the prosecution inasmuch as the eye-witnesses have been disbelieved. It is trite that medical evidence is a confirmatory piece of evidence and cannot be a substitute for the ocular account. It can only furnish details about the seat of injuries, their duration and the weapon used in the commission of offence but cannot identify the culprit. Reliance is placed on Alaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103), Haji Paio Khan v. Sher Biaz and others (2009 SCMR 803), Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410) and Hashim Qasim and another v. The State (2017 SCMR 986).
21. Complainant Zahida Bibi had nominated nine persons in the cross-version. The learned trial Court has acquitted five of them on the same evidence on which it has convicted the Appellants. We agree with the learned counsel for the Appellants that it could not do so as there was no independent corroboration. In Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11), the Hon'ble Supreme Court of Pakistan held: "When witnesses are disbelieved qua the acquitted co-accused to whom same and similar role was attributed then they shall not be relied upon with regard to the other co-accused unless they are strongly corroborated by evidence coming from independent source."
Similarly, in Munawar Ali v. The State (PLD 1993 SC 251), it was ruled: "When the eye-witness compromises his integrity and makes a false (statement by way of addition or improvement in his deposition and on that account one or the more accused in that case are acquitted, then in such situation great care and caution is to be exercised in dealing with the evidence of such witness for the purpose of its evaluation in respect of conviction of the other accused and is to be accepted only when it is supported by independent corroboratory evidence."
Again, in Akhtar Ali and others v. The State (2008 SCMR 6), the apex Court held: "It is settled law that eye witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration."
The above principle was reiterated in lean Ali v. The State (2015 SCMR 840), Shahbaz v. The State (2016 SCMR 1763) and Muhammad Asif v. The State (2017 SCMR 486).
22. For what has been discussed above, we have come to the ineluctable conclusion that the prosecution has failed to prove the charge against the Appellants beyond doubt. Accordingly, we allow this appeal and set aside the impugned judgment. The Appellants are acquitted of the charge. The sentence of Appellants was suspended by this Court vide order dated 4.10.2016 passed in Criminal Miscellaneous No.1 of 2016 and they were released on bail. Their sureties are discharged.