' SARDAR MUHAMMAD, J.-Arif Nawaz, aged 26 years, Shahid Nawaz, aged 19 years, Muhammad Iqbal alias Malangi, aged 27 years, have filed Criminal Appeal No, 495 of 1981. Iftikhar Ahmad alias Khara, aged 26 years and Ijaz Ahmad, aged 29 years, have filed Criminal Appeal No, 500 of 1981. Both the appeals are directed against the order dated 11-8-1981 of Additional Sessions Judge, Sialkot, whereby the learned. Additional Sessions Judge convicted the appellants under section 148/149, P.
P. C., for having formed an unlawful assembly, under section 302/149, P. P. C., for having committed the murder of Munawar Husain, under section 307/34, P. P. C. For having launched murderous assault on Mumtaz alias Taji (P. W. 4) and sentenced as under :-
(a) Two years' R. I. Each, under section 148/149, P. P. C.
(b) To undergo imprisonment for life and a fine of Rs, 5,000 each, in default whereof to suffer two years' R. I., under section 302/149, P. P. C.
(c) Five years' R. I. And a fine of Rs, 2,000 each, in default whereof to suffer one year R. I. Each, under section 307/149, P. P. C.
' The sentences awarded have been directed to run concurrently. On realisation of the fine of Rs, 10,000 have been directed to be paid as compensation to the legal heirs of Munawar Husain deceased, under section 544-A, Cr. P. C.
' Ashiq Husain complainant has filed Criminal Revision No, 521 of 1981, against the appellants for enhancement of their sentences, which has been ordered to come up along with Cr. A. No, 495 of 1981. The complainant has also filed Criminal Revision No, 381 of 1982, against Muhammad Nawaz, acquitted accused, which has been directed to be heard along-with Criminal Appeal No, 495 of 1981. Since both the appeals and the revision petitions arise from the same order, they are being disposed of by one judgment.
' It may be noted that the appeals and the revision petitions were matters to be decided by a Single Bench but were placed before the Division Bench, for the reason that Criminal Appeal No, 75/82, filed by the State against Mumtaz alias Taji. And Khalid Javed (acquitted accused) of the cross case, had been admitted to regular hearing and since Criminal Appeal 75/82 had to be disposed of by a D. B., the present appeals and revision petitions were also placed before the D. B.
2. F. I. R. (Exh. P. E./1) was recorded at Police Station, Sambarial at 1-45 p. m. On 8-6-1980, on receipt of statement (Exh. P. E.) of Ashiq Husain complainant, recorded by Fazal Elahi, A. S.-I., in Civil Hospital, Sialkot. The complainant's case, according to the F. I. R., is that on 8-6-1980, he was travelling in a wagon along with his brother Munawar Hussain deceased, Mumtaz alias Taji and Khalid Javed P. Ws. At 7 a. m. The wagon reached near railway crossing Daska Road, near Sambarial, where Arif Nawaz, armed with a hammer, Muhammad Iqbal alias Malangi, Shahid Nawaz, Iftikhar alias Khara and Ijaz, armed with saryas, accompanied by Muhammad Nawaz (acquitted accused), empty handed, were already present. Arif Nawaz alias Golri closed the northern gate of the railway level crossing, as a result of which the wagon stopped. Muhammad Iqbal alias Malangi after spotting Munawar Hussain told him that they were looking for him since long and he should come out. Munawar Husain and Mumtaz alias Taji got down from the wagon.
The complainant and Khalid Javed, however, remained sitting in the wagon hiding themselves amongst, other passengers. Arif Nawaz gave a hammer blow on the head of Munawar Hussain, who fell down, thereafter, lqbal alias Malangi, Shahid Nawaz, Ijaz and Iftikhar gave him injuries with saryas. On exhortion of Muhammad Nawaz that he (Munawar Hussain) should not be spared, Arif Nawaz gave injuries with the hammer on the right leg and right arm of Munawar Hussain. Mumtaz alias Taji was also given injuries by Iqbal with sarya over his head, by Shahid Nawaz with sarya, over his left wrist. The occurrence, in addition to the complainant, was also witnessed by P. W. Majid alias Boota, given up P. W. Manzur Hussain and a few others, not named had reached the spot. The assailants after causing injuries ran away.
' According to the complainant, Munawar Hussain was removed by him in a Suzuki wagon to Civil Hospital, Sialkot, where 4/5 hours later Munawar Hussain died.
' It is stated in the F. I. R. That Muhammad Iqbal son of Jan Muhammad had got a case registered under section 325, P. P. C. Against Munawar Hussain etc., which was fixed for hearing before Syed Danish Raza Naqvi, M. I. C. At Daska and they were going, to appear, in that case. The complainant has also stated that Munawar Hussain deceased was the complainant against Arif Nawaz appellant and one Muhammad Asghar in a case under section 302, P. P. C. And that Arif Nawaz was on bail in that case. According to him Arif Nawaz had injured Munawar Hussain, Mumtaz alias Taji because of previous enmity.
3. Gul Abbas, S.-I./S.H.O. (P. W. 10) arrested appellants Iftikhar and Iqbal. Iqbal led to the recovery of sarya (P. 4), which was taken into possession vide memo. Exh. P. L. Khadim Hussain S.-I./S.H.O. (P. W.
11) arrested.Arif Nawaz, Shahid Nawaz and Ijaz appellants on 1-9-1980.
4. The autopsy on the dead body of Munawar Hussain was performed by Dr. Rizwan All (P. W. 1) on 9-6-1980. In the column prescribed for injuries in the post-mortem report, the doctor has made a note that injuries were the same as were mentioned by him in the medico-legal report (Exh. P. A.) of Munawar Hussain. According to his opinion death was due to shock and haemorrhage, resulting from injuries Nos. 1, 2, 5 and 6, which were sufficient to cause death in the ordinary. Course of nature.. Injuries Nos. 1, 2, 5 and 6 have been described as follows in the medico-legal report :-
(1) Huge lacerated wound over the middle part of the right leg 7. 5 cm x 4 cm bone visible very easily. Fracture was clinically evident. (The injury was not declared on the spot but X-ray was advised to ascertain the fracture).
(2) Lacerated wound at the base of leg centrally placed 15 cm above the ankle 5 cm x 5 cm (right).
(5) Lacerated wound over the right hand dorsal aspect 2 cm x 2 cnt with swelling.
(6) Lacerated wound over the medial aspect of the fight forearm 7. 5 cm x 5 cm with bleeding and bone deep.
' In cross-examination, the doctor has stated that "the injuries found on the corpse of Manawar Hussain could not be possibly inflicted with iron hammer. This I have stated in view of the dimension of the injuries".
' The same doctor had medically examined Mumtaz alias Taji at 10-04 a. m. And had noted a lacerated wound on the left forearm, huge swelling over left mandible and a lacerated wound on the back of scapula. Injuries on the left forearm and left mandible were declared grievous.
5. At the trial the prosecution in all has examined 13 P. Ws., including Dr. Rizwan Ali (P. W. 1), who had medically examined Munawar Hussain deceased in his lifetime, and Mumtaz alias Taji P. W. He had later conducted autopsy on the dead body of Munawar Hussain deceased. A gist of his evidence has been noted above. Evidence of recovery or sarya (P. 4) at the stance of Muhammad Iqbal, which was taken into possession vide memo. Exh. P. L., has been furnished by Ghulam Mustafa (P.
W. 9) and Gul Abbas, S.-I. (P. W. 10). There is no evidence of recovery from any other appellant.
Evidence of procurement of warrants of arrest of appellants Arif Nawaz, Shahid Nawaz and Ijaz and evidence of initiation of proceedings under section 87, Cr. P. C. Against them has been tendered through Muhammad Yunus, A. S.-I. (P. W. 12).
' Ashiq Hussain complainant (P. W. 3), Mumtaz alias Taji (P. W. 4), injured witness, and Abdul Majid alias Boota (P. W. 5) have stated the eye-witness account.
6. The complainant's case at the trial, which has been corroborated by P. Ws. 4 and 5, is that Muhammad Iqbal had lodged a case under section 325, P. P. C. Against Munawar Hussain deceased, Mumtaz P. W. And two others, which was fixed for hearing before a Magistrate at Daska on 8-6-1980. His brother Munawar Hussain had got registered a case under section 302, P. P. C. For the murder of Khadim Hussain against Arif Nawaz appellant and one Muhammad Asghar, who were on bail on the day of occurrence. He has stated that on the day of occurrence, he was going in a wagon alongwith Munawar Hussain, Mumtaz and Khalid Javed, when the wagon reached at railway crossing at Daska Road, Sambarial, at about 7 a.m., Arif Nawaz, who was already present there, closed one of the gates of the level crossing, as a result of which the wagon stopped. Arif Nawaz was armed with a hammer of gainti type and was accompanied by appellants Muhammad Iqbal, Shahid Nawaz, Iftikhar Ahmad, Ijaz, Bashir Ahmad, brother of Iqbal appellant, armed with saryas, and acquitted accused Muhammad Nawaz, who was empty handed. Muhammad Iqbal came near the wagon and told Munawar Hussain that they were looking for him since long and be should come out or he will be done to death. Munawar Hussain and Mumtaz came out of the wagon. Arif Nawaz gave a hammer blow on the head of Munawar Hussain. He started bleeding.
Bashir Ahmad, brother of Iqbal, then attacked Munawar Hussain. Munawar Hussain had a chhuri with him, which he inflicted on the chest of Bashir Ahmad. Munawar Hussain and Bashir Ahmad fell injured on the ground at the same time. Shahid Nawaz, Muhammad Iqbal, Ijaz and Iftikhar then caused injuries to Munawar Hussain with their respective weapons. Muhammad Nawaz, acquitted accused, exhorted Arif Nawaz not to spare the life of Munawar Hussain, whereupon Arif Nawaz gave hammer blows on the right leg and right arm of Munawar Hussain, as a result of which both were fractured. When Mumtaz entreated the accused to spare Munawar Hussain, Muhammad Iqbal gave a sarya blow on his head, Shahid Nawaz gave sarya blows on his left arm, on the right cheek and jaw, as a result of which his right arm, cheek and jaw were fractured. Whereafter, Mumtaz ran away. He has also stated that he and Khalid Javed remained sitting in the wagon. The occurrence was witnessed by Majid alias Boota, given up P. Ws. Arshad and Riaz and some other persons whose names he did not know. He has also stated that the accused decamped from the spot with their weapons. Whereafter. They removed Munawar Hussain from the spot to Civil Hospital, Sialkot.
' He has further stated that he went to the Police Station, Sambarial, which was at a distance of 1 furlongs, where he found Muhammad Nawaz and Muhammad Iqbal present. He told Nazir Gill, S. H.
O., that his brother had been killed by the accused. He directed him to go to Civil Hospital, Sialkot, where he will follow. His statement was not recorded by the Thanedar. A. S.-I. Fazal Elahi reached Sialkot at 12-30 noon who recorded his statement. At the time of recording of statement, the A. S.-1.
Asked him not to implicate Bashir Ahmad as he had already died. The A. S.-I. Also slapped him when he named Muhammad Nawaz and Arif Nawaz, as they were his friends.
' He also produced Exh. P. F., copy of report No, 3, dated 24-3.1980, recorded at Police Station, Sambarial at his stance.
7. Arif Nawaz appellant has denied the charges. He has admitted that Munawar Hussain deceased had got registered a case against him for the murder of Khadim Hussain but it was got discharged by the police. He has taken up the plea that he and his father Muhammad Nawaz were involved in the case due to enmity and political rivalry.
' Shahid Nawaz has also denied the charges. He has stated that he has been involved falsely because of his relationship with Arif Nawaz and Muhammad Nawaz.
' Iftikhar and ljaz have also denied the charges and have taken up the plea that they have been involved falsely. Iftikhar has also submitted a written statement contending therein that Mumtaz alias Taji P. W. Was inimical to him as he had taken him into custody in. Village Begowal in a state of intoxication and in possession of a loaded unlicensed revolver, as a result of which cases under the Arms Ordinance and Hudood Ordinance were registered against him. Ijaz, who is brother-in- law of Iftikhar, has also filed a written statement on same lines.
' Appellant Muhammad Iqbal has also denied the charges. He has stated that he has been involved in the case due to enmity and party faction. He has taken up the plea of self-defence. He has stated that on the day of occurrence he was present with his brother Bashir Ahmad deceased at the railway crossing, awaiting for conveyance to go to Daska to appear in case under section 325, P. P. C. Against Munawar Hussain deceased, etc. At 7 a. m. He stopped a wagon which was coming from Sambarial side. Arshad. Hussain absconder, who was already sitting in the wagon hurled abuses, which both of them returned. He came out of the wagon alongwith Chin Pir, Mumtaz alias Taji, Khalid Javed and Munawar Hussain deceased. Arshad was armed with a dagger, Munawar Hussain was empty handed, while others were armed with sotas. Munawar Hussain after raising a lalkara caught Bashir Ahmad from behind, Mumtaz took him into japha and Arshad inflicted a dagger blow on the chest of Bashir Ahmad, who fell down after receiving the injury and died. Whereafter, he picked up a piece of wood from nearby wood-stall and caused injuries to Munawar Hussain deceased and Mumtaz alias Taji in self-defence. He has stated that the occurrence was seen by Khadim Ali, Muhammad Ramzan and a large number of other persons also. He has also stated that he had lodged F. I. R. No, 78 at Police Station, Sambarial on the same day at 7-30 a. m., against the above-named persons for having committed the murder of his brother Bashir Ahmad. He . Produced Exh. D. D., copy of F. I. R. No,
78. He has further stated that the present case was lodged against them because of enmity and by giving a false version of the incident. He has also filed certified copies of the statements of Muhammad Ramzan and Khadim Hussain, made by them in the cross case against the complainant and others.
8. Learned counsel for the appellants has contended that F. I. R. In this case was lodged after unexplained delay of 5/ hours in spite of the fact that the Police Station was situated at a distance of If furlongs from the spot, that the P. Ws. Are interested and inimical, that the presence of the complainant and Majid P. W. Has not been established beyond reasonable shadow of doubt, that although the presence of Mumtaz P. W. 4, being injured witness is not denied, but his evidence does not inspire confidence, that in any case, the eye-witness account, furnished by all the three eye- witnesses should be ruled out for the reason, that they did not give any explanation regarding injury to and presence of Bashir Ahmad at the time of registration of the case, that the explanation furnished by them at the trial, in this regard is an afterthought improvement, which makes their statements more unreliable and that Muhammad Iqbal appellant has come up with a defence plea which bears the strength of being reasonably true to the extent of casting doubt on the prosecution version but if that be not considered, so, his plea should not be taken as an admission to be used for corroboration of the prosecution story as the prosecution cannot be allowed to take advantage of any weakness of the defence.
9. Learned counsel for the State/Complainant have contended that the eye-witness account in this case is worth reliance, that Abdul Majid P. W. Is resident of a place nearby the spot and so his presence cannot be termed as unnatural, that presence of Mumtaz alias Taji cannot be denied for being injured and that the complainant and other eye-witnesses have explained the delay in lodging the F. I. R. And also the reason for not having stated before police about presence of Bashir Ahmad and injury sustained by him at the hands of the deceased. Learned counsel for the complainant has laid much stress on the fact that the complainant had already got recorded, report (Exh. P. F.) expressing his apprehension that the accused might harm Munawar Hussain deceased.
10. We have considered the contentions of the learned counsel for the parties and have gone through the record. It is a case of two versions. Although as a matter of rule both the stories should be discussed by placing them in juxtaposition, nevertheless, we think it more appropriate to discuss the prosecution version first so as to reach a conclusion whether the prosecution on its own merits has been able to substantiate the charges against the appellants as the onus of proving the guilt of an accused person rests on thelA prosecution and the same cannot be shifted by any means.
' However, if the answer is in the affirmative, we will then discuss the two versions by placing them in juxtaposition.
11. It has been noted above that the prosecution case consists of alleged recovery of sarya from Muhammad Iqbal, evidence of absconsion against three of the appellants and evidence of the eye-witnesses.
12. The evidence of recovery of sarya from Muhammad Iqbal, even if admitted, is of no consequence in this case for the reason that it was not found blood-stained. It cannot lend any corroboration to the other evidence of the prosecution.
13. So far as the evidence of absconsion is concerned, it cannot be take into account for the reason that the same was not put to the persons against a whom the prosecution wanted this to be relied upon, when their statements under section 342, Cr. P. C. Were recorded. Reference in this regard may be made to Kaura and another v. The State (1).
14. The prosecution is thus left with the evidence of the complainant and two other eye-witnesses.
As has been noted above, the case of the C eye-witnesses before the police and at the trial is different. Some of th salient differences of the case of the eye-witnesses before the police and at the trial are being noted for consideration :-
(a) Neither the complainant nor the two eye-witnesses made any reference to the injury received by Bashir Ahmad during the occurrenee while lodging F. I. R. And making statements under section 161, Cr. P. C. (which have been duly confronted). Even presence of Bashir Ahmad during occurrence has not been stated therein.
' The explanation given by the complainant and other P. Ws. At the trial, that it was on the advice of A. S. I. Fazal Elahi, that they did not mention regarding Bashir Abmad's presence or his injury, is wholly unworthy of reliance.
(b) The stand taken by the complainant at the trial that he had gone to the police station immediately after the occurrence to report the occurrence but Nazir Gill, S. H.
0., had advised him first to take the injured to some hospital, does not find mention in the F. I. R. He had been appearing before some other police officers also but the complainant has not come up at any stage of the case with the plea that his supplementary statement on those lines was ever recorded.
(c)Some improvements regarding injuries of Mumtaz has also been made.
15. With this aspect ' of the conduct of the eye-witnesses, we proceed to consider their evidence.
' It may be useful to note hear that Ashiq Hussain and Abdul Majid P. Ws. Are khalazad. The deceased was the brother of Ashiq Hussain. Mumtaz is their partyman and was co-accused with the deceased in the case under section 325, P. P. C.
' It is recorded in the medico-legal report (Exh. P. A.) of Munawar Hussain that he was accompanied by Sub. Muhammad Din. It is not the case of the prosecution that Sub. Muhammad Din and Ashiq Hussain both had taken Munawar Hussain to the hospital at Sialkot. It is not known wherefrom Muhammad Din had joined. Had Ashiq Husain taken his brother to the hospital, his name instead would have been recorded in the relevant column.
' The statement of the complainant that throughout the occurrence he remained sitting in the wagon does not seem to be logical. His brother was {{FOOT NOTE}}
(1) PLD 1978 13 J 39 {{FOOT NOTE}} ' being given injuries, his friend was being injured but he remained quietly sitting in the wagon, there is no evidence that any of the appellants was armed with any fire-arm weapon. Apart from this improbability of his conduct, the other thing is that he could not have seen and noted the manner, each one of the appellants gave injuries and the seat of the injuries. He was neither a witness in the case in which the deceased was going to appear, nor co-accused.
It has been admitted in cross-examination that the parties were pitched against each other in some criminal matters, some of them were accused in D some cases while the others were witnesses in other cases. Even on the day of occurrence, some members of each party were to appear against each other in case under section 325, P. P. C.
' Keeping all what has been noted above, in view, we feel no hesitation in coming to the conclusion that Ashiq Hussain complainant was not present at the spot and he had not seen the occurrence.
Even otherwise, he is related, interested, and inimical and has made improvements in his statement and as such, his evidence lacks all essentials of inspiration.
' The position of Abdul Majid P. W. Is also not in any way, on better footing than Ashiq Hussain P. W.
He is also related, interested and has effected major improvements. He has to his credit that he is a resident of a nearby place where the occurrence took place, but the way he has toed the complainant both during investigation and at the trial shows that he was not acting independently.
He had chosen for himself the path of following the complainant in howsoever manner he would conduct himself.
' Although Mumtaz P. W. Is an injured witness and his presence cannot be denied, but the mere fact of his having been injured is no guarantee that he is telling the truth. Being injured, he would have known that in the occurrence he had received injuries, one Bashir Ahmad had also suffered injuries at the hands of his partymen and his having not mentioned the fact of the injuries of Bashir Ahmad in his statement under section 161, Cr. P. C. (with which he has been confronted) loudly indicates that he was also not acting of his own and was following the footsteps of the complainant without having regard to truth. It is not his case that he was pressed by any polic officer, not to make a statement regarding the factum of Bashir Ahmad havin been injured. It is also his own case that he had left the plac of occurrence, leaving Munavvar Hussain deceased on the spot and had adopted his own means to reach Sialkot. In fact, he had stated at the trial that he had run away from the spot to save himself. An inference can safely be drawn that he had run away from the place of occurrence during initial moments of the occurrence and, in fact, had not seen the occurrence in its entirety and it is for this reason that he went alone to Sialkot and did not know how Munawar Hussain was shifted to Sialkot and when he later learnt that Munawar Hussain of his party had died and Ashiq Hussain had lodged the F. I. R., he decided to follow their line. Like Abdul Majid P. W. He also seems to have chosen to corroborate the complainant in every way and in every field.
' We have also noted the opinion of the doctor that the injuries on the person of Muhammad Hussain (deceased) could not have been caused by a hammer. This is contradictory of eye- witness account.
16. The evidence of three eye-witnesses, for the above-noted reasons is not worth reliance. There is no other evidence which may connect the appellants with the crime. Since we have disbelieved the eye-witnesses nothing can be said whether the appellants had waylaid and stopped the wagon, ' Even if it be granted that the appellants or for that matter any o the appellants had a motive to commit the occurrence, the conviction cannot be upheld merely on that account.
17. One of the appellants, namely, Muhammad Iqbal, had taken plea of self-defence. Regardless of fact it is not possible to concede that he could have inflicted such a large number of injuries on Munawar Hussain deceased and could have injured one witness also, when his brother having been injured had fallen on the ground and had died and his adversaries were armed with sotas and a knife, we are not taking that into account, nor giving any weight to his statement for the purposes of determining the guilt of the appellants for the reason that we have not believed the prosecution evidence.
18. The accepted legal maxim is that the burden of proof in cases of criminal proceedings lies on the prosecution and the onus of proving theIK guilt of the accused beyond any reasonable doubt lies on their shoulders. ' It has been observed in Muhammad Fazhil Karim v. State etc. (1) that "It must be remembered always that in a criminal case the onus is on the prosecution to prove their case, and the accused cannot be convicted merely on proof of his having told an untruth in relation to one or more of the facts alleged against him."
The burden of establishing any special plea raised by the accused though may rest upon him, but that stage would come when a prima facie case is made out against the accused, sufficient to justify his conviction. It is then and only then that the burden shifts to the accused to prove the plea that he chooses to advance. It has been observed in State v. Ghazi etc. (2) at p. 198 that "in criminal trial the initial burden is always on the prosecution in spite of the provision laying the burden of proof on the accused.
If the prosecution discharges its burden of proving the case against the accused only then the burden is shifted to the defence."
No weekness of defence can prove truth of prosecution and so was heldlm in Inayat Hussain Shah v. Crown (3).
19. For the reasons enumerated above, we accept both the appeals, set aside the order of the trial Court and acquit the appellants. They shall b N released forthwith if they are not required in any other case.
20. Since we have not believed the prosecution evidence and have accepted the appeals, both criminal revision petitions stand disposed of as having no merits. {{FOOT NOTE}}
(1) PLD 1964 SC 792 (2) PLD 1978 Quetta 191
(3) PLD 1954 Sind 256 {{FOOT NOTE}}