AALIA NEELUM, J.---The appellants-Ejaz alias Jajji son of Muhammad Iqbal, caste Wattoo, resident of Baqar Kay, Dakhli Saddu Haider Malkana, Tehsil and District Pakpattan,. Tariq alias Tahri son of Muhammad Mansha, caste Mahar, resident of Lakhwaira Tehsil and District Pakpatan, Muhammad Amin son of Ahmed, caste Malkana Wattoo, resident of Lakhwaira Tehsil and District Pakpattan, Muhammad Ajmal son of Chiragh, caste Malkana Wattoo resident of Lakhwaira Tehsil and District Pakpattan and Muhammad Naeem son of Haq Nawaz, caste Gadhi Baloch, resident of 101/9-L, Tehsil and District Sahiwal, have assailed their conviction and sentence recorded by the learned Sessions Judge, District Pakpattan vide judgment dated 14.02.2019 in private complaint filed under sections 302, 324, 449, 336, 109, 148 and 149, P.P.C. P.S. Saddar, District Pakpattan titled "Faiz Ahmed v. Ejaz alias jajji, etc", whereby the learned trial court convicted the appellants under section 148, P.P.C. read with section 149, P.P.C. and sentenced to undergo 02-years rigorous imprisonment each along with fine of Rs.10,000/- each and in case of default in payment thereof, they would further undergo 02-months S.I. each. The appellants were also convicted under section 452, P.P.C. read with section 149, P.P.C. and sentenced to undergo 03-years rigorous imprisonment each along with fine of Rs.15,000/- each and in case of default in payment thereof, they would further undergo 03-months S.I each. The appellants were further convicted under section 324, P.P.C. read with section 149, P.P.C. for causing murderous assault upon Mst. Zubaida Bibi and sentenced to undergo 10-years rigorous imprisonment each along with fine of Rs.50,000/- each and in case of default in payment thereof, they would further undergo 06-months S.I each. The appellants were also convicted under section 324, P.P.C. read with section 149, P.P.C. for causing murderous assault upon Mst. Shahida Bibi and sentenced to undergo 10-years rigorous imprisonment each along with fine of Rs.50,000/- each and in case of default in payment thereof, they would further undergo 06-months S.I each. The appellants were also convicted under section 324, P.P.C. read with section 149, P.P.C. for causing murderous assault upon Mst. Razia Bibi and sentenced to undergo 10-years rigorous imprisonment each along with fine of Rs.50,000/- each and in case of default in payment thereof, they would further undergo 06-months S.I. each. The appellants were further convicted under section 337-F(iii), P.P.C. read with section 149, P.P.C. for causing injury on the person of Mst. Zubaida Bibi and sentenced to undergo 03-years rigorous imprisonment each along with Daman of Rs.30,000/- each. The appellants were also convicted under section 337-F(iii), P.P.C. read with section 149, P.P.C. for causing injury on the person of Mst. Shahida Bibi and sentenced to undergo 03-years rigorous imprisonment each along with Daman of Rs.30,000/- each. The appellants were further convicted under section 337-F(iii), P.P.C. read with section 149, P.P.C. for causing injury on the person of Mst. Razia Bibi and sentenced to undergo 03-years rigorous imprisonment each along with Daman of Rs.30,000/- each. The appellants were also convicted under section 302(b), P.P.C. read with section 149, P.P.C. for causing Qatl-i-Amd of Mst.
Ameer Sain and sentenced to undergo imprisonment for life as Tazir each with the direction to pay Rs.2,00,000/- each as compensation to the legal heirs of the deceased under section 544-A of Cr.P.C.and in case of default in payment thereof, they would further undergo 06-months S.I each.
All the aforesaid sentences awarded to above said appellants would run concurrently. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellants.
2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed their conviction through filing instant appeal bearing Criminal Appeal No.14905 of 2019. It is pertinent to mention here that the complainant also filed Crl. Rev. No.18550/ 2019 qua enhancement of sentence awarded to the appellants and P.S.L.A. No.18548/2019 against acquittal of co-accused namely Muhammad Ahmad, Ahmad Yar, Muhammad Riaz, Farid, Muhammad Anwar and Ibrar alias Dogri. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.
3. Briefly, the prosecution story as alleged in the private complaint (Ex.PB) of Faiz Ahmed (PW-1) the complainant is that on 07.04.2012 at about 05:00 p.m., he (PW-1) was present in his house situated in middle of the village, his wife Razia Bibi (PW-5), daughters namely Mst. Zubaida Bibi (PW-4), Mst.
Shahida Bibi (PW-3) and niece Mst. Ameer Sain (the deceased) were also present there.
Meanwhile, Ejaz alias Jajji (the appellant No.1) armed with .12-bore gun, Tariq (the appellant No.2) armed with .12-bore gun, Ahmad Yar alias Ahmi (co-accused since acquitted) armed with .12-bore gun, Riaz Ahmed (co-accused since acquitted) armed with rifle, Ahmed Sher (co-accused since acquitted) armed with rifle, Naeem (the appellant No.5) armed with .12-bore gun, Muhammad Amin (the appellant No.3) armed with 12-bore gun, Ajmal (the appellant No.4) armed with .12-bore gun, Muhammad Ahmed (co-accused since acquitted) armed with .12-bore gun, Farid (co- accused since acquitted) armed with .12-bore gun and Ibrar alias Dogri (co-accused since acquitted) armed with rifle, Nafeesar (co-accused) armed with rifle, forcibly entered into the house of complainant with the intention to commit murder. Ejaz alias Jajji (the appellant No.1) raised lalkara that they would teach a lesson for filing pre-emption suit, whereupon Ejaz alias Jajji (the appellant No.1) made fire shot with his 12-bore gun, which hit on the chest of Mst. Ameer Sain (the deceased). Tariq (the appellant No.2) made fire shot with his 12-bore gun, which hit Mst. Shahida Bibi (PW-3) the injured PW on her back of left shoulder, Muhammad Naeem Baloch (the appellant No.5) made fire shot with his gun, which hit Mst. Razia Bibi (PW-5) the injured PW on back side of her right thigh. Muhammad Amin (the appellant No.3) fired with his gun, which hit Mst. Razia Bibi (PW-5) the injured PW on back of her left thigh, Ajmal (the appellant No.4) made fire shot with his gun, which hit Mst. Zubaida Bibi (PW-4) the injured PW on front of her right thigh, whereas the other accused persons Riaz, Ahmad Sher, Farid, Ahmad Yar alias Ahmi, Muhammad Ahmed, Ibrar alias Dogri and Nafeesar (co-accused since acquitted) also made fire shot while standing inside the door. Meanwhile, fire shot made by Ejaz alias Jajji (the appellant No.1) hit his co-accused Ahmad Sher Baloch, on his naval parts and on his right thigh, whereas, during firing, the fire shot by Muhammad Naeem (the appellant No.5) hit Muhammad Tariq (the appellant No.2) on his legs, fire shot made by Ahmad Yar alias Ahmi (co-accused since acquitted) also hit his co-accused Tariq (the appellant No.2) on his left shoulder. The occurrence was witnessed by Dilmeer (PW-2), Asghar and other residence of the village. On arrival of the villagers, the accused persons while making indiscriminate firing, put their injured co-accused in two cars and succeeded in fleeing away from the spot, whereas, in the way Ahmad Sher accused succumbed to the injuries. In the said assault, wife of complainant namely Mst. Razia Bibi, his daughters namely Mst. Zubaida Bibi and Mst.
Shahida Bibi and his niece Mst. Ameer Sain sustained injuries. The complainant (PW-1) shifted the four injured ladies to Civil Hospital, Pakpattan, from where they were referred to DHQ Hospital Sahiwal and then referred to Jinnah Hospital, Lahore, where his niece Mst. Ameer Sain died due to injuries.
4. The motive behind the occurrence was that the complainant side filed suits for pre-emption against Muhammad Anwar and Ghulam Farid (co-accused since acquitted), which was pending and to this grudge, the accused persons with their common object made a plan and committed the occurrence.
5. The complainant Faiz Ahmad (PW-1) has submitted written application (Ex.PA) before S.H.O concerned police station, whereupon formal FIR (Ex.CW-6/A) was chalked out After registration of case, the investigation of this case was conducted by Muhammad Saleem S.I. (Rtd.) (CW-7), who having found the accused/appellants guilty, prepared report under section 173 of Cr.P.C. Being dis- satisfied with the result of investigation, as the Investigating Officer being in league with the accused did not investigate the matter properly, the complainant was constrained to file private complaint (Ex.PB) and after recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of offence, so they all were summoned to face the charge. Thereafter, the learned trial court formally charge sheeted the appellants on 08.04.2014 to which they pleaded not guilty and claimed trial.
The complainant in support of its version produced as many as six (06) witnesses, whereas Mst.
Shahida Bibi appeared as (PW-3), however, before cross-examination, she died on 19.07.2015 rest of the witnesses were produced by the prosecution as C.W-1 to C.W-15. The appellants were also examined in terms of Section 342, Cr.P.C., wherein the appellants Nos. 1 and 2 namely Ejaz alias Jajji and Tariq alias Tahri appeared as their own witness in terms of section 340(2), Cr.P.C. however appellants Nos.3 to 5 did not opt to appear as their own witness in terms of Section 340(2) of Cr.P.C and the appellants did not opt to produce any defence evidence except the appellant No.1-Ejaz alias Jajji, who tendered Ex.DD to Ex.DU in his documentary evidence.
6. The learned trial court after recording evidence and evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellants in the afore stated terms.
7. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
8. To prove the ocular account the prosecution produced Faiz Ahmad (PW-1) the complainant, Dilmeer Hussain (PW-2) eye-witness, Mst. Shahida Bibi appeared as PW-3 and before cross- examination, she died on 19.07.2015, Mst. Zubaida Bibi (PW-4) injured PW and Mst. Razia Bibi (PW-5) injured PW. Faiz Ahmad (PW-1) the complainant is father of Mst. Shahida Bibi, Mst. Zahida Bibi and husband of Mst. Razia Bibi, whereas paternal uncle of Mst Ameer Sain-deceased (then injured).
According to the prosecution, the incident took place in the house of the complainant at Chak Lakhvaira falling in the territorial jurisdiction of Police Station Saddar Pakpattan at 5.00 p.m. on 07.04.2012, wherein Mst. Shahida Bibi, Mst. Zubaida Bibi (PW-4) injured PW and Mst. Razia Bibi (PW- 5) injured PW received firearm injuries and as per prosecution story, they were shifted to the Hospital for treatment from the place of occurrence by the prosecution witnesses. In this regard Faiz Ahmad (PW-1) the complainant deposed during his examination-in-chief that:-- "All the accused persons fled away from the place of occurrence along with their respective weapons after arrival of the villagers while shifting Ahmad Sher and Tariq accused in their two cars while they were in injured condition. We took care the injured ladies and shifted them to District Headquarter Hospital, Pakpattan through rescue 1122, from where they were referred to District Headquarter Hospital, Sahiwal, from where the injured ladies were referred to Jinnah Hospital Lahore, due to their critical condition, where Mst. Ameeran Bibi succumbed to the injuries."
In similar lines Mst. Zubaida Bibi (PW-4) injured PW and Mst. Razia Bibi (PW-5) injured PW deposed during their examination-in-chief. Faiz Ahmad (PW-1) the complainant stated at the trial that they brought the injured, Mst.Shahida Bibi, Mst. Ameer Sain then injured, Mst. Zubaida Bibi (PW-4) injured PW and Mst. Razia Bibi (PW-5) injured PW and then took the injured to the District Headquarter Hospital, Pakpattan. Where first aid was provided to them. Due to critical condition of injured PWs they were shifted to District Headquarter Hospital, Sahiwal. Lady Dr. Samreen Faisal, WMO (CW-2) also deposed during her examination-in-chief that on 07.04.2012 at 9:05 p.m., she medically examined Mst. Shahida Bibi, and at 09:15 p.m. Mst. Ameer Sain (then injured) was medical1y examined at 09:00 a.m and Mst. Zubaida Bibi was medically examined at 9:20 p.m. From the deposition of Dr. Samreen Faisal (C-W-2) and Muhammad Saleem SI (CW-7) it reveals that soon after the incident all injured were not shifted to the Hospital for their treatment. Whereas they were taken to the police station, from place of occurrence, where Muhammad Saleem, SI (C-7) prepared their injuries statement Ex.CW-2/F, Ex.CW-2/E, Ex.CW-2/H, Ex.CW-2/B and Muhammad Javed 145/C took the injured to the DHQ Hospital Pakpattan for medical examination and this fact also reflects from the MLC of Ameer Sain Ex.CW-2/A, Razia Bibi Ex.CW-2/C, Zubaida Bibi Ex.CW-2/E and MLC of Shahida Bibi injured-PW Ex.CW-2/J. Muhammad Saleem, SI (CW-7) (Retired) I.O deposed during examination in chief that:- "On 07.04.2012, I was posted at P.S. Sadar, Pakpattan as Sub-Inspector. On the same day, Mst.
Zubaida Bibi PW, Razia Bibi PW, Mst. Shahida Bibi and Mst. Ameer Sain deceased had been brought to me at the police station Sadar, Pakpattan when they were in injured condition. I prepared their injury statements Ex.CW-2/F, Ex.CW-2/E, Ex.CWE-2/H and Ex.CW-2/B and handed over injured ladies to Muhammad Javed 145/C along with their injury statements to DHQ, Hospital, Pakpattan for their medical examination."
9. They were medically examined on 07.04.2012 between 09:00 p.m. to 09:20 p.m. and all injured- PWs were brought to the Hospital at 8:30 p.m. on the same day. In column of medical legal reports relating to, "name of the relative and friend" was written by "police". It is clear from the medical legal certificates that the injured were not accompanied by Faiz Ahmad (PW-1) the complainant and they were brought by the police for medical treatment, which makes the prosecution case doubtful. However, contents of the injury statements Ex.CW-2/F, Ex.CW-2/E, Ex.CW-2/H, Ex.CW-2/B clearly reveal that Mst. Shahida Bibi, Mst. Ameer Sain then injured, Mst. Zubaida Bibi (PW-4) injured PW and Mst. Razia Bibi (PW-5) injured PW were brought to the police station where their injury statements were prepared by Muhammad Saleem, SI (CW-7) (Retired) I.O. Oral evidence cannot displace the contents of the documents itself. A man may lie but a document will not. The prosecution has failed to offer a satisfactory explanation for the shifting of the injured to the hospital after preparing injury statements on 07-04-2012 by Muhammad Saleem, S.I. (CW-7)
(Retired) I.O. This creates serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence.
10. In the circumstances, I have straightway come to the material improve-ments/discrepancies/ contradictions in the prosecution evidence brought on the record by the defence. The defence has confronted the court statement of Mst. Zubaida Bibi (PW-4) with her earlier statement made before the I.O. The deposition of Mst. Zubaida Bibi (PW-4) reads as under:- "After recording the statement, police obtained my thumb impression in DHQ Hospital, Pakpattan. I had stated in my statement under section 161, Cr.P.C. before the police that Ijaz, Tariq, Ahmad Yar, Naeem, Ajmal, Amin, Muhammad Ahmad and Farid all armed with .12-bore guns forcibly trespassed into my house. Confronted with Ex.DB, wherein only firearms have been mentioned. I had stated in statement that Riaz, Ahmad Sher and Ibrar were armed with rifles when they entered forcibly in our house. Confronted with Ex.DB, wherein only firearms is mentioned. No description of weapon is given., I had stated in my statement under section 161, Cr.P.C before the police that Mst. Shahida Bibi (deceased) after receiving injury lost her capability moving and walking due to fracture of her spinal cord and now she is lying on the cot.
Confronted with Ex.DB, wherein it is not so reported. I had stated in my statement under section 161, Cr.P.C that due to firing of the accused persons a terror. was created in the whole village.
Confronted with Ex.DB, wherein it is not so recorded. I had stated in my statement under section 161, Cr.P.C. that Ahmd Sher received firearm injury from the hands of ljaz alias Jajji and Ahmad Sher was hardened and desperate criminal and he was involved in so many cases of dacoity and murder and he was wanted person to police in so many cases. Confronted with Ex.DB, wherein it is not so recorded. But it is recorded that Ahmad Sher and Tariq received fire shots from their own companion. I had stated in my statement under section 161, Cr.P.C. that Ijaz alias Jajji made a second fire which landed on the neck of Ahmad Sher deceased. Confronted with Ex.DB, wherein it is not so recorded. I had stated in my statement under section 161, Cr.P.C that Ahmad Yar fired at Tariq accused, which hit on left shoulder of Tariq. Confronted with Ex.DB, wherein it is not so recorded. I had stated in my statement under section 161, Cr.P.C. that Naeem accused fired two shots at the legs of Tariq accused. Confronted with Ex.DB, wherein it is not so recorded. I had stated in my statement under section 161, Cr.P.C that after the occurrence, we reached in the hospital through Rescue 1122 from where we were referred to DHQ Hospital, Sahiwal and from where we were referred to Jinnah Hospital, Lahore. Confronted with Ex.DB, wherein it is not so recorded. I had stated in my statement under section 161, Cr.P.C that Mst.
Ameeran Bibi was mother of seven children. Confronted with Ex.DB, wherein it is not so recorded.
I had stated in my statement that when we were admitted in Jinnah Hospital for many days and faces many operations. Confronted with Ex.DB, wherein it is not so recorded. I had stated in my statement that motive of this occurrence was that Anwar and Ghulam Farid purchased land from my cousin Tariq and he filed civil suit against accused persons. Confronted with Ex.DB, where detail of litigation is not mentioned. However, it is mentioned that Anwar and Ijaz are involved in litigation with my father."
Mst. Razia Bibi (PW-5) deposed during cross-examination that:- "My statement was recorded by the police. I do not remember that after how many days, my statement was recorded by the police. Police had come in my village, but I do not remember to this extent that at what place my statement was recorded. After recording the statement, police obtained my thumb impression in DHQ Hospital, Pakpattan. I had stated in my statement under section 161, Cr.P.C. before the police that Ijaz, Tariq, Ahmad Yar, Naeem, Ajmal, Amin, Muhammad Ahmad and Farid all armed with .12-bore guns forcibly trespassed into my house.
Confronted with Ex.DC wherein only firearms have been mentioned. I had stated in statement that Riaz, Ahmad Sher and Ibrar were armed with rifles when they entered forcibly in our house.
Confronted with Ex.DC, wherein only firearms is mentioned. No description of weapon is given. I had stated in my statement under section 161, Cr.P.C. before the police that Mst. Shahida Bibi (deceased) after receiving injury lost her capability moving and walking due to fracture of her spinal cord and now she is lying on the cot. Confronted with Ex.DC, wherein it is not so reported. I had stated in my statement under section 161 Cr.P.C that due to firing of the accused persons a terror was created in the whole village. Confronted with Ex.DC, wherein it is not so recorded. I had stated in my statement under section 161, Cr.P.C. that Ahmad Sher received firearm injury from the hands of Ijaz alias Jajji and Ahmad Sher was hardened and desperate criminal and he was involved in so many cases of dacoity and murder and he was wanted person to police in so many cases. Confronted with Ex.DC, wherein it is not so recorded, but it is recorded that Ahmad Sher and Tariq received fire shots from their own companion. I had stated in my statement under section 161, Cr.P.C. that Ijaz alias Jajji made a second fire which landed on the neck of Ahmad Sher deceased. Confronted with Ex.DC, wherein it is not so recorded. I had stated in my statement under section 161, Cr.P.C. that Ahmad Yar fired at Tariq accused, which hit on left shoulder of Tariq. Confronted with Ex.DB, wherein it is not so recorded. I had stated in my statement under section 161, Cr.P.C that Naeem accused fired two shots at the legs of Tariq accused. Confronted with Ex.DC, wherein it is not so recorded. I had statement in my statement under section 161 Cr.P.C. that after the occurrence, we reached in the hospital through Rescue 1122 from where we were referred to DHQ Hospital, Sahiwal and from where we were referred to Jinnah Hospital, Lahore. Confronted with Ex.DC, wherein it is not so recorded. I had statement in my statement under section 161, Cr.P.C. that Mst. Ameeran Bibi was mother of seven children.
Confronted with Ex.DC, wherein it is not so recorded. I had stated in my statement that when we were admitted in Jinnah Hospital for many days and faces many operations. Confronted with Ex.DC, wherein it is not so recorded. I had stated in my statement that motive of this occurrence was that Anwar and Ghulam Farid purchased land from my cousin Tariq and he filed civil suit against accused persons. Confronted with Ex.DC, where detail of litigation is not mentioned.
However, it is mentioned that Anwar and Ijaz are involved in litigation with my husband."
Besides Razia Bibi (PW-5) deposed during cross-examination that: "I do not know when I received injures I was taken to policed station or not. I was taken to Hospital. Police had reached at Hospital. The police had recorded my statement. The statements of Ameeran and Shahida were also recorded at the same time by the police."
11. Similarly, Faiz Ahmad (PW-1) the complainant improved his court statement. During cross- examination he (PW-1) deposed that: "I drafted in my application about the relationship of the accused which is mention in the first para of my chief examination. Confronted with Ex.PA where it is not so recorded. I got drafted in my application Ex.PA that my house is situated in the middle of the village. Confronted with Ex.PA where it is so recorded. I recorded in application Ex.pA that Ijaz alias Jajji accused fired upon me but one of his fire hit on the chest of Mst. Ameer Sain my niece. Confronted with Ex.PA where it is so recorded. However, this fact is not mentioned in my chief examination. ' I got recorded in my application that Ijaz accused is a hardened and desperate criminal and he was absconder in so many cases of dacoity and murder and he was a wanted person of the police in so many cases. He fired another shot which hit on the leg of Ahmed Sher mentioned above.
Confronted with Ex.PA where it is not so recorded. I got recorded in my application that accused Ahmed Yar fired at Tariq accused which hit on the left shoulder of Tariq and Naeem accused fired two shots at the legs of Tariq accused. Confronted with Ex.PA where it is not so recorded. I did record in my application that we shifted the injured lady to District Headquarter Hospital, Pakpattan through Rescue 1122. Confronted with Ex.PA where only word "Rescue 1122" is not mentioned. I did not record in my application Ex.PA that my daughter Shahida Bibi remained admitted and faced treatment at Jinnah Hospital for two months. She also faced three serious operations and she lost her capacity of movement. Volunteered that at the time of registration of case she was admitted at the hospital and at that time I was not known about her disability of moving and walking as it was informed to me by doctor during and after the treatment of operation of my daughter much after the occurrence. I did not get record in my application Ex.PA that police joined the hands with accused persons and after getting heavy illegal gratification twisted the facts of occurrence and got registered a cross version of this case in order to support the accused persons for making a defence version.
Thus, it becomes clear that there are major contradictions in the statements of Faiz Ahmad (PW-1) the complainant, Mst. Zubaida Bibi (PW-4) injured, and Mst. Razia Bibi (PW-5) injured. This leads me to the conclusion that the evidence of the prosecution witnesses is untrue, the trial court has committed error in convicting accused-appellants. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Rafique and others v. The State and others" (2010 SCMR 385) has held as under:- "This Court in the case of Saeed Muhammad Shah v. State 1993 SCMR 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid laved v. State 2003 SCMR 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence."
12. These circumstances make me have serious doubts about the mode and manner of the incident. I am inclined to accede to the submission of learned counsel for the appellants that this shows that the incident did not take place in the mode and manner as alleged by the prosecution.
I am left with no other option but to believe that injured witnesses i.e. Mst. Zubaida Bibi (PW-4) and Mst. Razia Bibi (PW-5) have deliberately concealed the mode and manner of occurrence. Mst.
Zubaida Bibi (PW-4) and Mst. Razia Bibi (PW-5) injured witnesses deposed falsely to support the prosecution version. Even by now, it is well settled principle of law that medical evidence only indicates receipt of injuries, kind of weapon used and nature of injuries but it did not name the assailant. Reliance is placed on "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53) and "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410).
The Hon'ble Supreme Court of Pakistan in case titled "Amin Ali and another v. The State" (2011 SCMR 323) held that: "................ Presence of injured witness cannot be doubted at place of incident merely because they had injuries on their person do not stamp them to be truthful witness."
The Hon'ble Supreme Court of Pakistan in the case reported as "Muhammad Pervez and others v.
The State and others" (2007 SCMR 670) held that, "--Injured prosecution witness-- Effect---Injuries on a prosecution witness are only indication of his presence at the spot but are not affirmative proof of his credibility and truth."
Looking to these facts, this court is of the opinion that true genesis of the occurrence has been withheld by the prosecution. Therefore, possibility of false implication of the appellants in the alleged crime cannot be ruled out and in my opinion, the prosecution has failed to bring home the charges framed against the appellants.
13. The prosecution evidence shows that the prosecution witnesses have not only exaggerated the incident but have also suppressed the mode and manner of the incident. The question arises for consideration is whether in view of the facts indicated above, it can be said that the incident had not been exactly taken place in the manner the prosecution witnesses of the occurrence have deposed. It is admitted fact that FIR No. 170 of 2012 (Ex.DJ) for the alleged occurrence had already been lodged on the same day i.e. 07-04-2012 by Bahawal Sher, brother of Ahmad Sher-deceased of the above said FIR and Tariq-Appellant No. 2 was injured witness of said occurrence. Tariq- Appellant No. 2 was medically examined on the same day and Muhammad Saleem, SI (CW-7) prepared his (Tariq-Appellant No-2) injury statement Ex.DM after registration of case FIR No. 170 of 2012 (Ex.DJ), on the same day under Sections 302/324/148/149, P. P. C. at Police Station Sadder, Pakpattan. Muhammad Naeem 267/C took the injured to the DHQ Hospital Pakpattan for medical examination and this fact also reflects from the MLC of Tariq-Appellant No.2 (Ex.DN) and on the same day post mortem examination upon the body of Ahmad Sher was conducted. This fact reflects from the post mortem examination report (Ex.DQ) of Ahmad Sher. Thereafter, the present F.I.R. was lodged by Faiz Ahmad (PW-1) the complainant after four days of the occurrence. All the injured persons from both sides went to the concerned police station on the same day from where they were referred to the hospital for their treatment. Therefore, it is liable to be deemed that there was no dispute at that time regarding not lodging first FIR (Ex.DJ) which was lodged promptly after alleged occurrence on the same day. Investigation is done against the crime reported through both FIRs Muhammad Saleem S.I. (Retired) (CW-7) investigating officer deposed during cross- examination that:- "It is correct that FIR No.170/12 in the alleged occurrence Ahmad Sher was murdered and Tariq was injured. It is correct during my investigation 4 persons namely Abbas, Khadim, Husain, Iltaf and Abid were found guilty in case FIR No.170/12. It is also correct that rifle was also recovered and cases against them were lodged under section 13/20/65. It is correct that alleged occurrence took place at 04:00 pm and FIR was registered at 06:15 p.m. It is correct that the FIR No.175/12 was lodged after the 4 days of this occurrence it was also related to the same occurrence. It is correct that I challaned 3 persons in this case i.e 175/12. Both the cases were investigated by me and no one raised objection for investigation. It is correct that the complainant of case FIR No.175/12 was not accused in case FIR No.170/12 P.S. Saddar Pakpattan..... During my investigation when I visited the place of occurrence where occurrence took place was in street where Ahmed Sher was murdered and Tariq was injured. It is incorrect that ladies sustained injuries in the street rather they were injured on gate.....I concluded in my investigation that Ahmed Sher was murdered and Tariq was injured by the firing of Khadim Hussain, Iltaf, Abid and Abbas in case FIR No.170/12. It is correct that as per my investigation there was a cross firing wherein the ladies received injured while standing in the gate of their house. It is correct that the FIR that was lodged after the 4 days of FIR the prosecution story narrated by the prosecution was prove partially. It is correct that after lodging the 2nd FIR I visited the place of occurrence just after."
Muhammad Saleem S.I. (Retired) (CW-7) investigating officer further deposed during cross- examination that:- "Faiz accused was not present on 07.04.2012 when I visited the place of occurrence. He had gone while bringing the ladies. It is correct that at the time of lodging of 1st FIR he recorded his statement that he had got land from Ijaz Wattoo where he reside. It is correct that it had been mentioned in case FIR No.170/12 a quarrel took place among Sajid son of Faiz complainant of this case Ahmad Sher and Naeem due to the reason the allegedly Sajid had removed the maize crop of Ahmad Sher and beat them. I don't remember that this matter was patched up by Ijaz as it was mentioned in FIR No.170/12. It is correct that the house of Tariq injured is adjacent to the house of Faiz. I don's know that Tarlq is the grandson of Faiz."
Dilmeer Hussain (PW-2) eye-witness deposed during cross-examination that:- "The dead body of Ahmad Sher accused/deceased was lying street at the time of arrival of the police and police escorted the same from where. The house of Tariq accused/injured is adjacent to the house of the complainant. Tariq accused a cited witness in cross version case. Tariq is belongs our Mahaar Baradari. The complainant is the paternal uncle of father of Tariq accused."
Whereas, Faiz Ahmad (PW- I) the complainant suppressed the material facts and denied the suggestions put by the defence. Faiz Ahmad (PW-1) the complainant deposed during cross- examination that:- "It is also correct that the I.O. of this case is also the I.O of case FIR No.170/12 Supra.....I filed present private criminal complaint after 01/01 1/2 month of the occurrence. It is correct that above said ladies namely Razia, Zubaida, Shahida and Ameer Sain were injured at the same place.....Ahmad Sher was murdered in my courtyard (Sehan). It is incorrect that Ahmad Sher received firearm injury in the street. It is also incorrect that his blood stained earth and dead body was also taken into possession from the street. ...It is correct that Tariq witness resides on the backside of my house. It is correct that Tariq PW is my nephew. It is incorrect that above said ladies were also injured in the street, when they came out after hearing noise of firing...It is correct that my preemption suit is pending against paternal uncle of accused Ijaz. It is correct that similar pre-emption suit was also filed by Abbas accused of case FIR No.170/12 against Anwar, uncle of Ijaz accused, but the same was dismissed. It is correct that Khadim Hussain is my son, who earlier got registered a case FIR No.269/08 against ljaz etc, wherein enmity and grudge with Ijaz etc. we falsely implicated them in this case."
Zubaida Bihi (PW-4) injured deposed during cross-examination that:- "It is correct that Abbas, Altaf, Khadim Hussain and Abid were also challaned in cross FIR, case registered by Bahawal Sher. I do not know whether any recovery was effected from any of the above mentioned accused and cases were registered in this regard. It is in my notice that four days prior to registration of our case, FIR had been registered against us It is into my knowledge that Ahmad Sher- had been killed whereas Tariq received injuries at the same time but I do not know that dead body. of deceased and Tariq in injured condition were lying in the street in the same line. It is correct that 1 as well as my mother Mst. Razia Bibi had not joined any civil or criminal case between parties except this criminal case. The house of Tariq is adjacent to our house. He is my cousin (Chachazad). It is correct that my parents had effected compromise with Bahawal Sher. complainant of FIR No.170/12."
I have gone through the entire persecution evidence and found that the prosecution has suppressed the genesis and the original occurrence and has thus not presented the true version. In these circumstances it is difficult to accept their testimony.
14. There is another aspect of the case Faiz Ahmad (PW-1) complainant deposed that incident took place on 07.04.2012 at 5:00 p.m, whereas he reported the incident on 11.04.2012 at 12:15 a.m. (night) at Pull Behram Shah through his written application Ex. PA to Muhammad Saleem, SI (CW-7), whereas formal FIR was chalked at 12:25 p.m. on 11-04-2012, whereas distance of police station is 18 kilometers. At the cost of repetition, the contents of the injuries statement Ex.CW-2/F, Ex.CW-2/E, Ex.CW-2/H, Ex.CW-2/B clearly reveal that Mst. Shahida Bibi (died on 19.07.2015), Mst. Ameer Sain then injured, Mst. Zubaida Bibi (PW-4) injured PW and Mst. Razia Bibi (PW-5) injured PW were brought to the police station were their injury statements were prepared by Muhammad Saleem, SI (CW-7) (Retired) I.O. on 07-04-2012. The complainant had not reported the incident to the police and later on with delay of 04 days reported the incident. Muhammad Saleem S.I. (Retired) (CW-7)
Investigating Officer deposed during cross-examination that:- "It is correct that the injured ladies have not asked to me to register their case."
Whereas Dilmeer Hussain (PW-2), Faiz Ahmad (PW-1)'s wife brother, who also witnessed the incident, admitted during cross-examination that:- "It is correct that even after the occurrence in which one woman was died/murdered and three were injured, I had not informed the police in any way."
If I take the deposition of Faiz Ahmad (PW-1) complainant as correct to the extent of being providing treatment to the injured ladies even then Dilmeer Hussain (PW-2), Faiz Ahmad (PW-1)'s wife's brother, has not reported the incident to the police. It is also admitted fact that all the injured ladies were taken to Police Station from the place of occurrence where their injury statements were prepared and they were referred to Hospital through Muhammad Javed 1166/C for medical treatment even then the matter was not reported to the police. On the other hand, Faiz Ahmad (PW-1) deposed during cross-examination that:- "the case was registered on the third day of the occurrence. I approached the police and filed an application for registration the police in these three days. I was in the hospital for attending my injured and deceased daughter so, I do not know who brought my application to the police station. I thumb marked the application and sent to the police station through one Jahangir Khan."
These circumstances create serious doubt in the prosecution case. On the other hand, it is admitted fact that during the incident one Ahmad Sher lost his life and accused Tariq was injured and regarding murder of Ahmad Sher and injured Tariq FIR No.170/12 dated 07.04 .2012, under sections 302/324/148/149, P.P.C. was registered on the complaint of Bahawal Sher at Police Station Saddar Pakpattan. Faiz Ahmad (PW-1) the complainant during cross-examination denied the suggestion and deposed as under:- "It is incorrect to suggest that case FIR No.170/12, P.S. Sadar, Pakpattan was registered on behalf of Bahawal Sher against us."
15. However, it is admitted fact that FIR No.170/2012 was registered against the son of Faiz Ahmad (PW-1) complainant and other relative and compromise in the said case was effected. Faiz Ahmad (PW-1) complainant during cross-examination deposed as under:- "It is correct that a case against my sons and others is also fixed in this case court for today. It is correct that in the case FIR No.170/12, our' compromise has been effected with Bahawal Sher..... It is correct that now the wife of Ahmad Sher deceased has filed a private complaint against my sons and others titled "Shabnam Bib v. Bahawal Sher etc". wherein accused persons have been summoned. It is correct that in case FIR No.170/12, one Tariq was also injured. It is correct that now our compromise has also been effected with Shabnam Bibi....It is correct that private criminal complaint titled "Shabnam Bibi v. Bahwal Sher etc" is also pending because Tariq injured has not yet got recorded his statement regarding compromise."
Muhammad Saleem, SI (C.W-7) deposed during cross-examination that: "It is correct that FIR No.170/12 in the alleged occurrence Ahmad Sher was murdered and Tariq was injured. It is correct during my investigation 4 persons namely Abbas, Khadim Hussain, Iltaf and Abid were found guilty in case FIR No.170/12. It is also correct that rifle was also recovered and cases against them were lodged under section 13/20/65. It is correct that alleged occurrence took place at 4:00 pm It is correct that the complainant of case FIR No.175/12 was not accused in case FIR No.170/12 P.S. Saddar Pakpattan."
Muhammad Saleem, SI (CW-7) further deposed during cross-examination that: I concluded in my investigation that Ahmad Sher was murdered and Tariq was injured by the firing of Khadim Hussain, Iltaf, Abid and Abbas in case FIR No.170/12. It is correct that as per my investigation there was a cross firing wherein the ladles received injured while standing in the gate of their house. It is correct that the FIR that was lodged after the 4 days of FIR the prosecution story narrated by the prosecution was proved partially."
Faiz Ahmad (PW-1) the complainant through his supplementary statement (Ex-CW-11/A) reported death of his daughter Mst. Shahida Bibi on 19-0'7-2015. In this regard Faiz Ahmad (PW-1) the complainant deposed during examination--in-chief on 30-01-2016 that:- "I had already made a statement before this court on 13.10.2014 regarding this occurrence and I have also been cross-examined on 19.10.2014. My daughter Mst. Shahida Bibi who was examined as PW-3 in this case and had received injuries during occurrence by the firing made by Tariq accused and remained under treatment since then in different hospitals but she could not survive and ultimately died on 19.07.2015 in Jinnah Hospital, Lahore due to the above said injuries caused by accused Tariq. During the period, she remained under treatment she was unable even to move and stand from the bed. I had produced her before this court for evidence on 18.11.2014 on ambulance. I informed the police regarding the death of my daughter Shahida Bibi and the police recorded my statement Ex.CW-II/A, which was attested by me."
Faiz Ahmad (PW-1) the complainant deposed during cross-examination that: "I had not recorded in my statement Ex.CW-11/A that Mst. Shahida Bibi had been discharged from Hospital after one month of the occurrence. Confronted with Ex.CW-11/A wherein it is so recorded."
Zulfiqar Ali, SI (CW-11) investigating officer deposed during cross-examination that: "It is correct that the complainant stated before me that Shahida Bibi had fully recovered from the injury sustained by her."
16. The real question was whether the wound was cause of death. An act is said to cause death when death results from the act itself or from some consequences necessarily or naturally flowing from the act, and reasonably contemplated as its result.
17. There is no evidence that the condition of Mst. Shahida Bibi was deteriorating from the time she was admitted in the hospital. The medical records would have provided clues as to her condition and the treatment given and onset of infection. But prosecution has not attempted to summon her medical record nor same was produced before the court. Dr. Samreen Faisal (CW-2) conducted postmortem examination on the dead body of Mst. Shahida Bibi on 19.07.2015, who deposed during examination-in-chief that time between injuries and death was KUO (Kept under observation) and was to be assessed after receipt of report from PFSA. As Mst. Shahida Bibi died after about three years of the incident. Dr. Samreen Faisal (CW-2) deposed during cross-examination that:- "It is correct that when I conducted the postmortem of Mst. Shahida I had mentioned that everything of the body was intact I am unable to give my final opinion regarding the cause of death due to non-availability of histopathology report sent by me at the time of postmortem examination. It is correct that I have not mentioned the injuries sustained by Mst. Shahida are fetal on MLC."
18. The occurrence took place on 07.04.2012 at 05:00 p.m. and as per prosecution case from 07.04.2012 onward, the injured was under medical treatment. Evidence does not indicate that infection or tetanus developed quickly. There is no evidence that her condition was deteriorating from the time she was admitted in the hospital. The medical records would have provided clues as to her condition and the treatment given and onset of infection but no record was produced by the prosecution. Mst. Shahida Bibi appeared in witness box as PW-3 on 18-11-2014 and got recorded her statement and stated that she remained in Jinnah Hospital Lahore for two months for her treatment. The prosecution evidence is silent that whether she readmitted in hospital for her treatment after first discharge from hospital. Looking to these facts, this court is of the opinion that true genesis of the occurrence has been withheld by the prosecution. Therefore, possibility of false implication of the appellants in the alleged crime cannot be ruled out and in my opinion, the prosecution has failed to bring home the charges framed against the appellants.
19. The recoveries of repeater gun (P-5) along with five live cartridges (P-6/1-5) from Ejaz alias Jajji, .12 bore gun (P-7) along with five live cartridges (P-8/1-5) from Muhammad Naeem and .12 bore gun (P-9) along with five live cartridges (P-10/1-5) from Tariq alias Tahri on 21-06-2012 were not matched with the four crime empties (P-1/1-4) secured from place of occurrence after four days of the incident on 11-04-2012. Therefore, there is no incriminating recovery in this case available on record to connect the appellants with the commission of offence. The motive has not been believed by the trial court, and in my considered view, rightly so.
20. From the above detailed discussion, I am, however, convinced that the prosecution has failed to establish its case. It seems that the truth was seen buried under the debris and a different story was structured perhaps to lug the appellant into trial under the serious offence. It is often said "that Fouler the crime higher the degree of proof" I have gone through the process of keen examination of the entire material and found compelling reasons as stated above to disgrace with the conclusion reached/ recorded by the learned Additional Sessions Judge and also found that the prosecution has miserably failed to prove the guilt of the accused-appellant beyond reasonable doubt. As per dictates of law benefit of every doubt is to be extended in favour of the accused. In the case of "Muhammad Akram v. The State" (2009 SCMR 230), it is held as under:- "Benefit of doubt....Principles--- For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right".
21. Resultantly Criminal Appeal No.14905-J of 2019 is accepted. Conviction and sentence recorded by the learned trial court vide judgment dated 14.02.2019 is set aside as a consequence whereof, Ejaz alias Jajji son of Muhammad Iqbal, Tariq alias Tahri son of Muhammad Mansha, Muhammad Amin son of Ahmed, Muhammad Ajmal son of Chiragh and Muhammad Naeem son of Hay Nawaz, appellants are ordered to be acquitted of the charge in private complain titled "Faiz Ahmad v. Ejaz alias Jajji etc." in case FIR No.175 of 2012, dated 1I.O4.2012, offence under sections 302/ 324/ 452/ 109/ 148/ 149, P.P.C. registered at Police Station Saddar Pakpattan, District Pakpattan. The appellants Ejaz alias Jajji son of Muhammad Iqbal, Tariq alias Tahri son of Muhammad Mansha, Muhammad Amin son of Ahmed, Muhammad Ajmal son of Chiragh and Muhammad Naeem son of Haq Nawaz, are in jail. They (the appellants) are directed to be released forthwith, if not required in any other case.
22. So far as Criminal Revision No. 18550 of 2019 filed by the complainant, namely Faiz Muhammad for enhancement of sentence awarded to the respondents Nos.2 to 6 by the learned trial court is concerned, for the reasons afore-stated, the same is devoid of any legal force, which is accordingly dismissed.
23. As far as P.S.L.A. No. 18548 of 2019 seeking conviction of respondents Nos. 1 to 6 is concerned, for what has been discussed above in the light of prosecution evidence, medical evidence and documentary evidence, the acquittal of respondents Nos.1 to 6 does not suffer from any illegality so as to call for interference of this Court with the impugned judgment. This court has also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the judgment of the lower court is perverse or that it is completely illegal and no other conclusion can be drawn except the guilt of the accused or there has been misreading or non-reading of evidence resulting in miscarriage of justice. Even otherwise, when accused is acquitted by a court of competent jurisdiction, double presumption of innocence is attached to his case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in Muhammad Mansha Kausar v. Muhammad Ashgar and others (2003 SCMR 477). In this case the prosecution has not been able to bring on record adequate incriminating evidence against respondents Nos.1 to 6 which connects them with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favour of respondents Nos.1 to 6.
The judgment of acquittal does not call for any interference. Consequently, I find no merit in this P.S.L.A. No.18548 of 2019, which is hereby dismissed being without merits.