ALI ZIA BAJWA, J.---Aqeel Hasnain (`appellant') son of Fazal Hussain, caste Cheena, resident of Chak No.387/WB, District Lodhran along with Najaf Ali, Ghulam Ali (both since acquitted) and Zohaib Hassan (since tried separately being juvenile and acquitted vide judgment dated 28.06.2016) was involved in case FIR No.84/2015, dated 14.04.2015, offence under Sections 336-B, 336, P.P.C., read with Section 7 of the Anti-Terrorism Act, 1997, registered with Police Station Jallah Arain, ' District Lodhran. He was tried by learned Judge, Anti-Terrorism Court No.11, Multan, under the afore-mentioned offences. Learned trial court seized with the matter convicted and sentenced the appellant in terms of judgment dated 28.04.2016 as under:- Under section 336, P.P.C., sentenced to undergo R.I. for fourteen years as Ta'zir with direction to pay Arsh equal to amount of Diyat (in lump sum or in installments within a period of three years from the date of pronouncement of judgment). In case of failure, he was directed to be detained in jail till its payment. > Under section 336-B, P.P.C., sentenced to undergo fourteen years R.I. with fine of Rs.10,00,000/- and in case of default in payment thereof, to further undergo S.I. for six months. > Under section 450, P.P.C., sentenced to undergo R.I. for five years with fine of Rs.10,000/- and in case of default in payment thereof, to further undergo S.I. for three months. > Under section 7(c) of the Anti- Terrorism Act, 1997, sentenced to undergo R.I. for ten years with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo S.I. for six months.
The appellant was also burdened to pay Rs.10,00,000/- as compensation to the victim under section 544-A, Cr.P.C. to be recovered as arrears of land revenue. > All the sentences awarded to the appellant were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extended in his favour.
2. Aqeel Hasnain, appellant, has assailed his conviction and sentence through Criminal Appeal No.472/2016, while complainant preferred Criminal Appeal No.616/2016 against acquittal of Najaf Ali and Ghulam Ali (`respondents').
As both the matters are arising out of one and the same judgment of the learned trial court, therefore, same are being disposed of through this consolidated judgment. It is pertinent to mention here that co-accused Zohaib Hassan being juvenile was separately tried and acquitted by the learned trial court vide judgment dated 28.06.2016. Although his acquittal was challenged by the complainant through Criminal Appeal No.403/2016, however, the same was dismissed on account of not being pressed vide order dated 07.03.2018.
3. Succinct but essential facts germane to the disposal of appeals in hand are that Haji Khalil Ahmed (`complainant') (PW-5) moved an application (Exh.PG/1) before local police thereby narrating the story that the complainant is resident of Chak No.373/WB and involved in Zamindara.
Ghulam Shabbir brother of the complainant was running a shop in Chak No.374/WB. On 14.04.2015 at about 5:00 p.m. accused (1) Zohaib son of Muhammad Aslam, (2) Aqeel Hasnain son of Fazal Hussain, (3) Najaf Ali son of Hassan Bakhsh and (4) Ghulam Ali son of Hassan Bakhsh, all residents of Chak No.363/WB, while riding on motorcycles, along with 4/5 unknown accused persons, reached at the shop of brother of the complainant. Zohaib Hussan raised lalkara to teach a lesson to Ghulam Shabbir for misbehaving with his mother. The two accused persons, all of a sudden, threw jug full of acid over brother of the complainant, which resulted into injuries on his face, eyes and chest. Motive behind the occurrence as disclosed in the crime report was that Ghulam Shabbir, being elder, did counseling of mother of accused Zohaib Hassan.
4. On the application of the complainant, FIR was registered and investigation was entrusted to Eid Muhammad S.I. (PW-3), who prepared injury statement of the injured (Exh.PA) and sent him to RHC Makhdoom Aali for medical examination. He was medically examined by Dr. Muhammad Arshad, (PW-1), who referred him to Burn Unit, Nishtar Hospital, Multan, where Medical Board examined him and rendered its report (Exh.PM). Thereafter investigation was entrusted to Muhammad Ijaz, Inspector (PW-9), who on 17.05.2015 arrested the appellant, at that time the appellant was riding on a motorcycle bearing registration No.2967/BRM (P-6), which was secured vide recovery memo Exh.PH. Investigating Officer interrogated the case, recorded statements of the prosecution witnesses under section 161, Cr.P.C. On the application of the Investigating Officer, ward report of the injured prepared by Dr. Ahmad Ali, Medical Officer (PW-8) was delivered to him, thereafter, he added offence under section 336, P.P.C. During the course of investigation having found the appellant involved in the occurrence, Investigating Officer submitted report under section 173, Cr.P.C., while placing his name in column No.3.
5. After submission of challan, learned trial court formally indicted the accused to which they pleaded not guilty and claimed trial. Prosecution in order to establish its case produced as many as eleven (11) prosecution witnesses. Khalil Ahmed (PW-5) is eye-witness and complainant of the case, Ghulam Shabbir (PW-6)/injured/victim and Muhammad Naveed Khaliq (PW-7) are other witnesses of ocular account. Investigation in this case was conducted by Eid Muhammad, S.I. (PW- 3) and Muhammad Ijaz, Inspector (PW-9). Initially the injured was medically examined by Dr. Muhammad Arshad (PW-1). The injured was also medically examined at Nishtar Hospital, by Medical Board and Dr. Muhammad Zafarullah being one of its members appeared as (PW.11).
6. On closure of prosecution evidence, the appellant and co-accused were examined as envisaged under section 342, Cr.P.C; wherein they refuted the allegations levelled against them in the prosecution evidence. They did not opt to appear as witnesses in their own defense as provided under, section 340(2), Cr.P.C, however, they opted to lead defense evidence.
7. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record, convicted and sentenced the appellant in the afore-stated terms, while co-accused Najaf Ali, Ghulam Ali were acquitted. Co-accused Zohaib Hassan, tried separately being juvenile, was acquitted of the charge.
8. We have heard the learned counsel for the parties and learned Deputy Prosecutor General at considerable length and minutely gone through the record with their able assistance.
9. Prosecution case hinges upon medical evidence, ocular account, motive and spot recoveries.
We deem it appropriate to scrutinize each piece of evidence one by one to reach at a conclusive decision qua the culpability of appellant.
Medical Evidence
10. Medical evidence in this case was brought on the record through Dr. Muhammad Arshad (PW.1), who medically examined injured Ghulam Shabir and issued medical legal Report (MLC Ex:PC), which describes that: "There was black discoloration of face, neck, anterior half chest, middle part. Anterior both forearms and patches on back of chest, due to acid burns. There was haziness of eyes and hampered vision. There is excessive salivation, he was feeling severe pain at burn areas. It was a corrosive burn, it was 20% burn."
Injuries were kept under observation and injured Ghulam Shabir was referred to Burn Unit Nishter Hospital, Multan for burns management, from where he was discharged on 11-05-2015 with the plan of reconstructive surgeries and referred to eye department for further management. Considering the report issued by Burn Unit Nishter Hospital, Multan, doctor declared the injuries as ITLAF-E- SALAHIAT-E-UDW. Subsequently a medical board was constituted, consisting of Dr. Bilal Saeed, Dr. Ashiq Hussain Malik and Dr. Muhammad Zafarullah, which after examining the victim issued its report (Ex:PM). According to that report, practically there was no light perception in the left eye, therefore victim was declared completely blind, whereas in right eye the perception of light was (+-) which indicated that he was blind from right eye too.
11. Deposition of Medical Officer PW.1), Medical Legal Certificate (Ex.PB), report issued by Burn Unit (Ex:PC), statement of Dr. Zafarullah (PW.11) and report of medical board (Ex:PM) clearly established that injuries on the person of victim were caused through corrosive substance and resulted in loss and disfigurement of eye-sight and face respectively. Even today disfigured face of the victim, present before the court, can be seen and there is no uncertainty that permanent scaring on his face, chest and back was caused by vitriol attack.
10. It is settled proposition of law, reiterated by the apex Court of this country' in numerous judgments[1], that the medical evidence neither pin point the perpetrator of the crime nor corroborative in nature, rather a confirmatory piece of evidence[2] to the extent of locale and specification of injury, cause of injury and time when injury was caused. It would not be out of place to quote an extract from a recent landmark judgment of prestigious Supreme Court of Pakistan in Naveed Asghar's Case [3] Supra.
"Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence"
It evinces from evidence that this is a typical case of vitriolage whereby, face of the victim was permanently mutilated and his eyesight was lost in a gruesome manner. But the vital question, which has been brought forth for adjudication through this appeal, is whether the appellant was the culprit who committed the alleged occurrence. We have to appraise the probative value of ocular account tendered by the prosecution to determine the culpability of appellant as conviction can only be sustained on the strength of such evidence.
Ocular Account
13. It has been straightaway observed by this court that in the crime report four accused persons namely Zohaib, Aqeel Hasnain, Najaf Ali and Ghulam Ali were nominated and 4/5 accused were stated to be unknown. Accused Zohaib (since acquitted) raised a Lalkara to teach Ghulam Shabir a lesson for misbehaving with his mother and thereafter two accused persons poured a jug full of corrosive substance on him without specifying their names. There is allegation of acid throwing only against two accused persons without mentioning their names. Complainant, while appearing before the trial court, stated that accused Zohaib, Aqeel, Najaf Ali and Ghulam Ali poured jug of acid on victim. He was duly confronted with his previous statement i.e. complaint, wherein only allegation of acid throwing on victim had been levelled against the two accused persons. While deposing before the court on oath complainant (PW. 5) stated as under: "The accused namely Zohaib son of Aslam, Aqeel son of Fazal Hussain, Najaf Ali son of Hassan Bukash and Ghulam Ali son of Hassan Baksh poured acid through jug on my brother"
On the other hand, while deposing before the court on oath, victim (PW.6) stated as under: "Aqeel Accused was holding a jug containing acid. Zohaib accused raised lalkara that myself/victim be taught a lesson for making insult of Zohaib's mother. Ghulam Ali, Najaf Ali and Zohaib in consultation with each other while holding arm of Aqeel put the jug of acid upon me"
Such knocking down of prosecution case did not stop here and statement of third eye-witness namely Muhammad Naveed (PW.7) proved last nail in the coffin of prosecution case. Relevant part of his testimony is copied as under: "We witnessed the accused namely Muhammad Aqeel Hussain, Muhammad Zohaib Aslam, Najaf Ali, Ghulam Ali present before the court along with four, five unknown accused persons came on motorcycles and reached there. The Aqeel accused put acid with the help of zohaib accused upon Ghulam Shabir containing in a jug. Najif Ali and Ghulam Ali remained standing with the above said two accused. Four five unknown accused remained standing at a distance from the above accused"
14. Statements of the prosecution witnesses are not only at variance with each other but also run contrary to story narrated in the crime report qua the role of accused persons played in the occurrence and manner in which it was committed. Material improvements were made by the prosecution witnesses which further make their credibility doubtful. Improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses.
15. We are cognizant of the fact that Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case should be ignored.[4] The core of the evidence has to be seen and not any borderline's aspect. Minor variations which do not have any effect on the credibility of the evidence, cannot be the basis to discard intrinsic value of the evidence.[5] In appreciation of evidence, the approach must be whether the evidence of the witnesses read as a whole, appears to have a ring of truth.[6] Where a witness who makes dishonest improvements while deposing before the court on material aspect is not worthy of reliance. Deliberate and dishonest improvement made by the prosecution witnesses, while deposing before the court on oath departing from his previous statement made under section 161 Cr.P.C. or any other previous statement, make their statements highly doubtful and unreliable.[7] Deliberate and dishonest improvements made by a witness in his statement to strengthen the prosecution case cast serious doubts on his truthfulness and makes him untrustworthy and unreliable. It is very unsafe to rely on his testimony to convict an accused.
Moreover, it does not appeal to common sense that jug full of corrosive substance shall be thrown on the victim by all the accused persons together as stated by the prosecution witnesses or even by two accused as narrated in the crime report. It seems that a wider net had been knitted to implicate additional accused along with the actual culprit. Ocular account being replete with material improvements, contradictions, discrepancies and inconsistencies is untrustworthy, therefor, same cannot be relied upon to sustain the conviction of appellant. Evidence adduced by the prosecution was not securitized by the learned trial court in the light of judicial prescriptions laid down by the apex Court of this country. In these circumstances it would not be safe to count on the ocular testimony to maintain the conviction of appellant.
Motive
16. No independent evidence is available on the record other than bare assertion that victim of this case tried to advice the mother of co-accused Zohaib (since acquitted) and due to that grudge occurrence in hand took place. Even otherwise motive is not attributed to the present appellant rather same was attributed to aforementioned co-accused. Motive itself is not proof of a crime rather a cause of a crime, which needs to be proved through coherent and tangible evidence.
Existence of motive/enmity is neither a substantive nor a direct evidence. It is not a corroborative piece of evidence either. The motive/enmity is only a circumstance, which may lead to the commission of an offence. It is a starting point for committing a crime, but under no circumstance it can be taken as substantive piece of evidence. Further, motive/enmity is a double-edged weapon. Offence may be perpetrated because of the existence of the motive/enmity and it can also be a basis of a false charge.[8] Even otherwise, failure to produce ocular evidence was always sufficient for acquittal[9].
Spot recovery and report of Forensic Lab
17. Although investigating officer took into possession jug, clothes and terra, all and stained. These articles were sent to forensic lab for analysis. Report of forensic expert (Exh:PN) divulges that all aforementioned items were stained with sulfuric acid. It would not be out of place to mention that no finger prints were extracted from the metallic jug recovered from the place of occurrence.
Recovery of aforementioned articles and forensic report do not connect the present appellant with the commission of crime in question. Even otherwise, recovery of these articles is of no avail to prosecution case when ocular account is unreliable and not worthy of credence.
Acquittal of co-accused
18. In the First Information Report four accused person namely Zohaib, Aqeel Hasnain, Najaf Ali and Ghulam Ali were nominated and 4/5 accused were stated to be unknown. In this case four nominated accused were summoned to stand the trial. Principal accused Zohaib having direct motive was acquitted by the trial court and appeal against his acquittal was also dismissed by this Court being not pressed. Co-accused Najif Ali and Ghulam Ali were also acquitted through the impugned judgment disbelieving the ocular account. It is a settled principle of law that where few co-accused are acquitted discarding the testimony of prosecution witnesses, conviction of other co-accused cannot be based on the testimony of same set witnesses in' absence of strong and independent evidence.[10] We are afraid that such independent and strong corroboration is evidently missing in this case, necessary to sustain the conviction of appellant. Furthermore, it would not be out of place to mention that during investigation 4/5 unknown accused persons, as mentioned in crime report, could not be traced. It seems that mentioning of additional 4/5 unknown accused persons was with an intent to hold space for adding more accused if needed subsequently. When a complainant adopts to knit a wider net of implication, his complaint invokes the sense of conspiracy instead of the grievance at the very foundation, and the court cannot take his testimony without a pinch of salt.
19. It is trite law, reiterated by the apex Court of this country time and again, that a single circumstance creating reasonable doubt is sufficient enough for acquittal of accused. Numerous dents and doubts are not required in prosecution case for extending benefit of doubt. If a single reasonable doubt is available in prosecution case, accused would be entitled to the benefit of doubt, not as a matte; of grace and concession 'but as a matter of right.[11]
20. The number of accused implicated in the case is also eyebrow raiser. We are not suggesting that the incident never takes place or to be false only because large number of accused cannot participate in the incident. But there is a general tendency to spread the net wider and even implicate those who are not concerned with the commission of the crime in question or who even though present commit no overt act to show that they share the common object of the unlawful assembly or responsible for the riotous act of other accused persons. Protection of such falsely implicated accused and shielding them against the false accusation is more vital under the scheme of criminal law than punishing the culprits who actually committed the crime.
21. It is celebrated principle of criminal jurisprudence that it is better that ten guilty persons escape than that one innocent suffers.[12] In celebrated Judgment rendered in Coffin v. United States[13], Supreme Court of United States of America, while dealing with question of presumption of innocence held that "it is better to let the crime of a guilty person go unpunished than to condemn the innocent". It will be most appropriate to conclude the discussion with Hadith of our beloved Prophet (Peace be upon him) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent.[14]
22. Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (`Constitution') ensures the right to fair trial, which encompasses the protection of innocent person falsely accused of criminal charges. Article 13 of Constitution protects the presumption of innocence and lays down that a person cannot be compelled to confess guilt or give evidence against himself, therefore burden shall always lie on the prosecution to prove its case. Presumption of innocence has been described variously as bedrock 'axiomatic and elementary' principle whose enforcement lies at the foundation of the administration of our criminal law. Latin maxim "Ei incumbit probatio qui dicit" connotes that the burden of proof is on the one who declares, not on one who denies.[15] The principle laid down is that it is the prosecution's duty to prove the guilt beyond reasonable doubt rather than the accused to prove his innocence. It is basic component of a fair trial and an assumption that, in the absence of contrary facts, it is to be assumed that any person's conduct upon a given occasion was lawful.[16] It goes without saying in order to hold an accused guilty of an offence evidence must be persuasive enough to overcome the presumption of innocence, which, we are afraid, is not available on record in the case in hand.
23. Even otherwise, victim of crime turns himself into most cruel, when he implicates innocent person as an accused to satisfy his instinct of vengeance. When a victim/aggrieved falsely accuses an innocent for commission of a crime against him, he himself introduces another `victim'
(an innocent falsely implicated) in that case and to rescue such innocent person is more imperative for the court under criminal justice system than providing justice to a victim who does not come to court with clean hands. By a conscious attempt to cause injustice to an innocent by laying a trap of wrong implication, one does not only give a fatal blow to his own cause/case, but does also place stumbling blocks on the path of administration of justice. When a victim endeavors to cause injustice to an innocent, his expectation to attain justice is not realistic and he is destined to be hoisted with his own petard.
24. Islam firmly condemns a person who falsely accuses an innocent person. In Holy Quran and Hadiths of our beloved Prophet (peace be upon him) a person who falsely accuses another is a sinner and shall be dealt with accordingly. Treasured Quranic references and traditions of our beloved Prophet (peace be upon him) have been provided hereinafter: And those who hurt the believing men and the believing women without their doing anything (wrong), surely, they bear (themselves) the burden of a false allegation and an open sin. (Sura Ahzab: verse 58)
And avoid false statement"
(Surah Al-Haj: verse 30)
"Shall I not tell you of the great sins? He said three times and the Companions said: Why not, O Messenger of Allah? He said: Associating partners with Allah and disobeying parents. He was leaning on the Prophet (peace be upon him). Then he sat down and said: Falsehood (also a grave sin) was repeated by the Prophet (peace be upon him) over and over again, until we said: we wish he had kept quiet"[17] Supreme Court of Pakistan after referring number of Quranic verses and traditions of our beloved Holy Prophet (peace be upon him) in Khizer Hyat ' s Case'[18]observed that false testimony was one of the greater sins. It was decorously held as infra: "Giving false testimony has many evils for it supports falsehood against truth and promotes injustice and aggression against justice. It also effaces fairness and equity and poses danger to public safety and security"
25. We have observed that approach of widening the net of implication always causes irreversible loss to prosecution case. It not only results in exoneration of falsely implicated accused but also in acquittal of actual culprits. The very moment complainant adopts to knit a wider net of implication, half of his case goes down the drain at its very inception and rest he faces during long anguish of trial, which ultimately results in acquittal of actual perpetrators of crime. Criminal courts are under a bounden duty to protect an innocent as protection of innocent is the primary value of Criminal Justice System. The trend of false accusation must be curbed and in that regard most crucial role is of investigating officer, who from the very opening is in a position to determine qua the involvement or innocence of accused persons through honest investigation.
26. In view of the above discussion, we are of the absolute view that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt; therefore, his conviction cannot be maintained, resultantly, we accept this Criminal Appeal No. 472/2016 by setting aside his conviction and sentence recorded by the learned trial Court through the impugned judgment dated 28.06.2016 and acquit him of the charge levelled against him, by extending him the benefit of doubt. He shall be released from jail forthwith, if not required in any other case.
27. As far as Criminal Appeal No.616 of 2016 filed by the complainant against acquittal of Najaf Ali and Ghulam Ali/respondents is concerned, for the afore-stated reasons, as we have disbelieved the prosecution version in totality, therefore, no case for interference qua acquittal of Najaf Ali and Ghulam Ali/respondents is made out. The instant appeal being devoid of merit hereby stands dismissed.
[1]Muhammad Mansha v. The. State (2018 SCMR 772), Muhammad Sharif and another v. The State (1997 SCMR 866), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Dildar Hussain v. Muhammad Afzaal alias Chala and others (PLD 2004 SC 663), Abdul Majeed v.
Mulazim Hussain and others (PLD 2007 SC 637) and Hashim Qasim and another v. The State (2017 SCMR 986).
2. Naveed Asghar v. State (PLD 2021 SC 600) and Hashim Qasim v. The State (2017 SCMR 986)
[3]Naveed Asghar v. State (PLD 2021 SC 600)
4. Appabhai v. State of Gujarat AIR 1988 SC 694 [1988 Cri.LJ 848]
5. Shamsuddin v. State of M.P. (2003 (12) SCC 693).
6. State of U.P. v. M. K. Anthony (AIM 1985 SC 48).
7. Shahzada v. Hamidullah, 1968 PCr.LJ 176 (5 members), Amir Zaman v. Mahboob 1985 SCMR 685, Saeed Muhammad v. State 1993 SCMR 550, Khalid Javed v. State 2003 SCMR 1419, Akhtar Ali v. State 2008 SCMR 6, Muhammad Rafique v. State 2010 SCMR 385, Muhammad Saleem v.
Muhammad Azan 2011 SCMR 474 and Sardar Bibi v. Munir Ahmed 2017 SCMR 344.
8. Akbar Ali v. The State 2007 SCMR 486 and Muhammad Noor's Case 1991 SCMR 643.
9. Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427.
[10]Altaf Hussain v. State 2019 SCMR 274, Akhtar Ali and others v. The State 2008 SCMR 6, Ghulam Muhamrnad's case PLD 1975 SC 588, Sheral alias Sher Muhammad's case 1999 SCMR 697 and Ata Muhammad's case 1995 SCMR 599.
11. Muhammad Imran v. The State (2020 SCMR 857), Abdul Jabbar and another v. The State (2019 SCMR 129), Mst. Asia Bibi v. The State and others (PLD 2019 SC 64), Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), Gul Dast Khan v. The State (2009 SCMR 431) and Daniel Body (Muslim name Saifullah) and another v. The State (1992 SCMR 196).
[12]"Commentaries on the laws of England".
J.B. Lippincott Co., Philadelphia, 1893.
13. (156 U.S. 432 [1895])
[14]Naveed Asghar and 2 others v. The State (PLD 2021 SC 600) and Ayub Masih v. The State (PLD 2002 Supreme Court 1048)
15. Ei incumbit probatio qui legal definition of Ei incumbit probatio qui (thefreedictionary.com)
16. The "Presumption of Innocence" as Constitutional Doctrine, Published in Catholic University Law review volume 28, issue 2 authored by William F. Fox Jr.
17. Sahih Al-Bukhari, Hadith: 2654, Sahih Muslim, Hadith: 87
18. NOTICE TO POLICE CONSTBLE KHIZAR HAYAT SON OF HADAIT ULLAH on account of his false statement - PLD 2019 SC 527