SOHAIL NASIR, J.---Aftab Hussain, Saddam Hussain, Sohail Khan and Noman Afsar had faced trial in case FIR[1] No-.71 (PL) recorded on 31.03.2020 under Sections 324/337-A(i)/337-A(iii)/ 337-L(ii)/ 337-F(i)/ 337-F(iii)/337-H(ii)/ 336/452/34, P.P.C.[2] at Police Station Dhumman[3] District Chakwal on the complaint of Qaisar Rehman (Pw-1) and on conclusion thereof vide judgment dated 04.11.2021 passed by the learned Judicial Magistrate with powers Section 30, Chakwal they all were convicted and sentenced as under: -
1. Aftab Hussain Under Section 324, P.P.C. to undergo 7 years RI and fine of Rs.30000/-. In default of payment of fine he was ordered to further undergo two months SI.
Under Section 452, P.P.C. to undergo 4 years RI and fine of Rs.20000/-. In default of payment of fine he was ordered to further undergo 1 month SI.
Under Section 337-F(lil), P.P.C. to pay an amount of Rs.40000/- as Daman to Qaisar Rehman (Pw- 1) and also to undergo two years RI.
Under Section 337-L(ii), P.P.C. to pay an amount of Rs.20000/- as Daman to Qaisar Rehman (Pw- 1) and also to undergo one year RI.
Under Section 337-F(i), P.P.C. to pay an amount of Rs.5000/- as Daman to Qaisar Rehman (Pw-1) and also to undergo 6 months RI.
Under Section 337-A(iii), P.P.C. to pay an amount of Rs.4,26,120.5/- as Arsh to Faisal Rehman (Pw- 5) and also to undergo 5 years RI.
Under Section 336, P.P.C. to pay an amount of Rs.8,52,241/- (eight lacs, fifty two thousands, two hundred and forty one) as Arsh to Faisal Rehman (Pw-5) and also to undergo 7 years RI.
Under Section 337-A(i), P.P.C. to pay an amount of Rs.20000/- as Daman to Faisal Rehman (Pw- 5) and also to undergo 1 year RI.
2. Sohail Khan Under Section 324, P.P.C. to undergo 7 years RI and fine of Rs.30000/-. In default of payment of fine he was ordered to further undergo 2 months SI.
Under Section 452, P.P.C. to undergo 4 years RI and to pay fine of Rs.20000/-. In default of payment of fine he was ordered to further undergo 1 month SI.
Under Section 337-F(iii), P.P.C. to pay an amount of Rs.40000/- as Daman to Qaisar Rehman (Pw- 1) and also to undergo two years RI.
Under Section 337-L(ii), P.P.C. to pay an amount of Rs.20000/- as Daman to Qaisar Rehman (Pw- 1) and also to undergo one year RI.
Under Section 337-F(i), P.P.C. to pay an amount of Rs.5000/- as Daman to Qaisar Rehman (Pw-1) and also to undergo 6 months RI.
3. Saddam Hussain Under Section 324 P.P.C. to undergo 7 years RI and fine of Rs.30000/-. In default of payment of fine he was ordered to further undergo 2 months SI.
Under Section 452, P.P.C. to undergo 4 years RI and fine of Rs.20000/-. In default of payment of fine he was ordered to further undergo one month S.I.
Under Section 337-F(iii), P.P.C. to pay an amount of Rs.40000/- as Daman to Qaisar Rehman (Pw- 1) and also to undergo two years RI.
Under Section 337-L(ii), P.P.C. to pay an amount of Rs.20000/- as Daman to Qaisar Rehman (Pw- 1) and also to undergo one year RI.
Under Section 337-F(i), P.P.C. to pay an amount of Rs.5000/- as Daman to Qaisar Rehman (Pw-1) and also to undergo six months RI.
Under Section 337-A(i), P.P.C. to pay an amount of Rs.20000/- as Daman to Qaisar Rehman (Pw- 1) and also to undergo one month RI.
4. Noman Afsar Under Section 324, P.P.C. to undergo 7 years RI and fine of Rs.30000/-. In default of payment of fine he was ordered to further undergo two months SI.
Under Section 452, P.P.C. to undergo 4 years RI and fine of Rs.20000/-. In default of payment of fine he was ordered to further undergo one month SI.
Under Section 3374(iii). P.P.C. to pay an amount of Rs.40000/- as Daman to Qaisar Rehman (Pw-1) and also to undergo two years RI.
Under Section 337-LIii), P.P.C. to pay an amount of Rs.20000/- as Daman to Qaisar Rehman (Pw-1) and also to undergo one year RI.
Under Section 337-F(i), P.P.C. to pay an amount of Rs.5000/- as Daman to Qaisar Rehman (Pw-1) and also to undergo six months RI.
2. Benefit of Section 382-B, Cr.P.C.[4] was extended to petitioners with direction that their sentences shall run concurrently.
3. Petitioners assailed their convictions by filing two Criminal Appeals, whereas complainant instituted a Criminal Revision for enhancement of sentences which were decided through a consolidated judgment dated 21.03.2022 passed by the learned Additional Sessions Judge, Chakwal. The decision of learned trial court was modified to the extent of convictions under Section 324, P.P.C. of Saddam Hussain and Noman Afsar and those were set aside.
4. Being aggrieved from the verdicts of two courts below now all the petitioners have approached this Court through the instant Criminal Revision.
5. Facts of the case are that on 31.03.2020 upon receipt of information of the occurrence Muhammad Irfan SI[5] (Pw-13)[6] arrived at District Head Quarters Hospital Chakwal where he recorded the statement (PA) of Qaisar Rehman (Pw-1). He maintained that on that day at about 11:45 am he was lying on a cot inside his shop; all of a sudden Muhammad Aftab armed with pistol, Sohail in possession of .12-bore gun, Saddam Hussain equipped with pistol and an unknown person resident of Panjain son of one Afsar having iron rod entered in the shop; Muhammad Aftab raised a `Lalkara[7]' to kill him where after Saddam Hussain caught hold and gave injuries with the grip[8] of pistol on his forehead; at the same time the other accused started inflicting injuries to him with iron rod and grips of pistols; after a struggle, he came out of the shop and at that occasion Sohail made a fire with .12-bore gun that hit on his legs; the witnesses also arrived there and when saw them, Sohail and Muhammad Aftab with their weapons started straight firing and within his view the fires hit on the mouth of Faisal Rehman; all the accused also made firing in the air and then escaped; the motive was that two days earlier Azhar Hussain forbade Muhammad Aftab to visit his house and for this reason there was a fight between them.
6. After endorsement by Muhammad Irfan SI, the above mentioned complaint was sent to Police Station through Kaleem Afzal Constable on the basis whereof FIR was recorded by Umar Hayat ASI[9] (Pw-6).
7. Investigating of the case was conducted by Muhammad Irfan SI. On the same day of occurrence through a supplementary statement Noman Afsar was also implicated by the complainant who in FIR was claimed to be unknown to some extent. On 10.06.2020 the Investigating Officer had arrested all the petitioners on refusal of their pre-arrest bail who during the investigation also led to certain recoveries.
8. On conclusion of investigation the report[10] under Section 173, Cr.P.C was submitted in court.
9. A charge under various heads framed against petitioners, on 14.10.2020, was not pleaded guilty by them and they demanded the trial.
10. In support of its case, prosecution had produced Qaisar Rehman/complainant (Pw-1), Muzaffar Hussain/ eyewitness (Pw-2), Ghulam Abbas/eyewitness (Pw-3), Raja Nazar Hussain/eyewitness (Pw-4), Faisal Rehman/injured (Pw-5), Umar Hayat ASI/author of FIR (Pw-6), Lady Dr. Arooj Khalid/Dental Surgeon (Pw-7), Dr. Zafar Abbas/Radiologist (Pw-8), Dr. Muhammad Mudassar / Medical Examining Officer (Pw-9), Muhammad Shahbaz/HC[11] (Pw-10), Bilal Ahmad/ Constable (Pw-11), Muhammad Adeel HC (Pw-12) and Muhammad Irfan SI/ Investigating Officer (Pw-13).
11. After giving up Muhammad Waqar and Muhammad Safdar being unnecessary and producing the reports of PFSA[12] (PAB & PAC) prosecution's evidence was closed by learned Assistant District Public Prosecutor.
12. In their examinations made under Section 342, Cr.P.C[13] petitioners pleaded their false involvement. They opted not to produce defence evidence or to appear as witnesses in terms of Section 340(2), Cr.P.C.
13. I have heard both the sides and with their valuable assistance I have also gone through the certified copies of the relevant documents attached with this Criminal Revision.
14. It appears that main focus of prosecution in this case was on quantity by producing five eye- witnesses and not the quality by ignoring the settled principles that is the quality and not the quantity that is relevant for just decision of the case[14].
15. Prosecution's case is mainly relying on the statements of two injured witnesses Qaisar Rehman / complainant (Pw-1) and Faisal Rehman (Pw-5). The presumption about an injured witness is a settled proposition that his/her presence at place of occurrence cannot be disputed or doubted because of injuries on his body[15] but it does not mean that he is to be given a stamp of truth. The honorable Supreme Court of Pakistan in Said Ahmad's case[16] on this particular proposition was pleased to hold as under: - "It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself, would not show that they had, in view of the afore-noted circumstances, told the truth in the court about the occurrence."
16. Again in Muhammad Hayat's case[17] on the same question it was laid down by the apex Court that:-- "There is no cavil with the proposition that merely because the P. Ws had stamp of firearm injuries on their persons was not per se tantamount to a stamp of credence on their testimony."
18. Similar issue after considering in Mehmood Ahmad's case[18] was answered as follows: - "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness."
18. Applying the above referred principles now 1 proceed to examine the merits of the statements of both the injured witnesses. Prosecution's story in FIR was quite specific that Sohail Khan made a fire with 12-bore gun that hit on the legs of Qaisar Rehman (Pw-1). In addition thereto it was also alleged that Qaisar Rehman received the injuries with the grips of pistols and iron rod by the accused. He was medically examined on the same day and surprisingly in his Medico Legal Report
(PQ) although the Doctor observed ten injuries but none of those was the result of firearm. Doctor Muhammad Mudassar (Pw-9) even in court was firm in his opinion that all the injuries were caused by blunt weapons. In cross-examination he without any reservation responded that "the injuries sustained by the injured can be sustained by falling on hard surface".
19. In FIR it was alleged that Aftab Hussain and Sohail Khan made firing and the fires hit on the mouth of Faisal Rehman (Pw-5). The same Medical Officer at the same time had also medically examined Faisal Rehman and issued MLR (PR). According to him injury No.1 was an entry wound on the lips whereas injury No.2 was an exit. Injury No.3 was loss of central incisor upper soft tissue whereas injury No.4 was swelling on centre of the nose, so it is not difficult to understand that apparently injuries Nos. 2 to 4 were ultimate outcome of injury No.1., Dr. Mudassar while facing the test of cross questioning about injuries Nos. 3 and 4 also replied that "Possibility cannot be ruled out that injury No. 4 could be the result of falling or striking on hard/blunt surface. It is correct that injury No. 3 could also be the result of striking with blunt weapon." Therefore it can be finally held that there was only one firearm injury on the person of Faisal Rehman.
20. The complainant neither at the stage of investigation nor during the process of trial made any attempt to challenge the opinions of Medical Officer with regard to kinds of weapon and even no request was made to the learned trial court to declare the Doctor as hostile or seeking permission for his re-examination which means that the prosecution has not disputed the opinions formed by the Medical Officer.
21. In view of above it is a clear case of contradiction between medical and ocular account and when it is so the benefit thereof shall go in favor of accused[19].
22. In FIR it was the case of Qaisar Rehman/complainant (Pw-I) that Aftab Hussain and Sohail Khan both made firing those hit on the mouth of Faisal Rehman, however when he came in witness box, he in his examination-in-chief improved the version by stating that Aftab Hussain and Sohail Khan made joint firing and it was the fire of Aftab Hussain that hit on the lips of Faisal Rehman. He was duly confronted by defence from his previous statement but he could not offer any explanation for this improvement. The settled principles on this subject cannot be ignored that an important witness of the case if improves his version during the trial to bring his evidence in line with the other declarations, his testimony remains of no worth for the prosecution[20].
23. In view of above circumstances, the worth and veracity of two injured witnesses of this case is under serious doubts hence they cannot be relied upon.
24. This Court on the principles of appreciation of evidence in Muhammad Hamza's case[21] had observed as under: - "Appreciation of evidence which may be direct or circumstantial is a delicate exercise that involves weighing the credibility and reliability of the incriminating material presented in a case and on conclusion thereof it must present a good picture that has to be accurate on all counts, with good composition, exposure, focus, light, and timing. In a criminal case as the question of life and liberty of an accused is at stake therefore under the settled principles of law a strict standard of proof is required so as to prove the guilt which cannot base on preponderance of probabilities but it must be proved beyond reasonable doubt. The words 'beyond reasonable doubt' mean that the prosecution must convince the court that there is no other reasonable outcome of the evidence produced in trial except the conviction of accused.
The prosecution case presented in the court must be true. There is also a difference between the words 'may be true' and must be true' and between these two phrases there is a long distance that has to be covered by legal, reliable and unimpeachable evidence. So for seeking the conviction against an accused prosecution evidence 'must be true'.
25. While commenting on the question of reasonable doubt and its benefit to accused in Muhammad Umar's case[22] this Court also observed that:-- "This is the settled principle of law that prosecution cannot escape from its duty to prove the case beyond reasonable doubt. Mr. James Q. Whitman[23] in his book "The Origins of Reasonable Doubt[24]" while digging in deep into its past, has written about origins that it was not primarily intended to protect the accused, instead, strange as it may sound, the reasonable doubt formula was originally concerned with protecting the souls of the jurors against damnation. According to him convicting an innocent defendant was regarded, as a potential mortal sin[25]. Referring to medieval doctrine[26], judging was a spiritually dangerous business. Any sinful misstep committed by a judge in the course of judging "built him a mansion in Hell." To be a judge in a capital case was to participate in a killing, and that meant judging was full of spiritual peril. He kept on saying that doubt was the voice of an uncertain conscience, and it had to be obeyed. "In cases of doubt," as the standard theological formula ran, "the safer way is not to act at all." A judge who sentenced an accused person to a blood punishment while experiencing "doubt" about guilt committed a mortal sin, and thus put his own salvation at grave risk. There is plenty of evidence that English jurors took these ominous threats quite seriously, especially at the end of the eighteenth century. Jurors experienced "a general dread lest the charge of innocent blood should lie at their doors." It was in response to such juror "dread" that the reasonable doubt standard introduced itself into the common law, especially during the 1780s. It is still with us today, a living fossil from an older moral world. "Beyond a reasonable doubt" standard was not originally designed to make it more difficult for jurors to convict but it was originally designed to make conviction easier, by assuring jurors that their souls were safe if they voted to condemn the accused. He finally wrote that: - "The law cannot give any convincing answer to the question, what is the meaning of "beyond a reasonable doubt?". That is a question only history can answer"
26. It appears that the learned trial court and even the learned appellate court did not apply their judicial minds to the facts and circumstances of the case. Instead of giving the benefit of doubt to petitioners they stretched and extended the same in favour of prosecution and it is needless to say that such view cannot be approved under any circumstance.
27. Concluding the discussions made above, this Criminal Revision is allowed. Impugned judgments are set aside. Aftab Hussain, Saddam Hussain, Sohail Khan and Noman Afsar are acquitted from the case. They are in custody and they shall be released forthwith if not required in any other case. The case property shall be dealt with in the same manners as directed by the learned trial court.
1. First Information Report.
2. Pakistan Penal Code (XLV of 1860).
3. A village located on Jhelum road in Chakwal District Province of Punjab Pakistan.
4. Period of detention of an accused in jail as under trial prisoner
5. Sub-Inspector
6. Prosecution witness
7. To shout; To throw a challenge; To threat
8. Also called
9. Assistant Police Officer
10. Also called 'Challan'
11. Head Constable
12. Punjab Forensic Science Agency
13. Code of Criminal Procedure IV of 1898), [14]Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Sarfraz alias Sappi and 2 others The State 2000 SCMR 1758; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Farman Ali and another v. The State and another 2020 SCMR 597
15. Amin Ali v. The State 2011 SCMR 323
16. Said Ahmad v. Zammured Hussain 1981 SCMR 795
17. Muhammad Hayat v. State 1996 SCMR 1411
18. Mehmood Ahmad v. State 1995 SCMR 127
19. Muhammad Zaman v. The State and others 2014 SCMR 749; Faiz Meeran v. The State 2016 SCMR 1456; Muhammad Mehboob v. The State 2021 SCMR 366; Muhammad Mehboob v. The State 2021 SCMR 366
20. 20 Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Farman Ahmad, v. Muhammad Inayat and others 2007 SCMR 1825; Akhtar All and others v. The State 2008 SCMR 6; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Muhammad Saleern v. Muhammad Azan and another 2011 SCMR 474; Irfan Ali v. State 2015 SCMR 840; Ali Sher v.
State 2015 SCMR 142; Javaid Akbar v. Muhammad Amjad and Jameel alias Jeela 2016 SCMR 1241; Azeem Khan v. Mujahid Khan 2016 SCMR 274; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Arif v. The State 2019 SCMR 631
21. Criminal Appeal No. 907 of 2017 Muhammad Hamza and another v. The State and another (https://sys.lhc.gov.pk/ appjudgments/2022LHC2827.pdf)
22. Muhammad Umar v. The State and another PLJ 2021 Cr.C. 1553 (also reported as 2022 MLD 697)
23. Mr. Whitman. is Ford Foundation Professor at Yale Law School, where he teaches criminal law and legal history. He holds both a law degree and a doctorate in history.
24. https: //historynewsnetwork. org/article/ 47018
25. A mortal sin, in Catholic theology, is a gravely sinful act, which can lead to damnation if a person does not repent of the sin before death.
26. Medieval philosophy is the philosophy that existed through the Middle Ages, the period roughly extending from the fall of the Western Roman Empire in, the 5th century to the Renaissance in the 15th, century