' Liaqat Hussain Shah and Ashiq Hussain Shah were tried alongwith Noor Hussain Shah, Akhtar Hussain Shah, and Walayat All Shah, on a private complaint under section 302/109/34, P.P.C. By the learned Additional Sessions Judge, Rawalpindi. Liaqat Hussain Shah and Ashiq Hussain were convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and a fine of Rs,20,000 each or in default to undergo two years' R.I. Each. The fine if recovered was ordered to be paid to the legal heirs of the deceased, namely, Ghulam Abbas Shah, whereas the remaining three accused were acquitted. The convicts have filed the present appeal, whereas the complainant Hussain Shah has filed Criminal Revision No,3 of 1988, for enhancement of their sentence from imprisonment for life to death. As both the matters arise out of the same judgment, they are being disposed of by this judgment.
2. Brief facts giving rise to the present case (complaint) which arises out of F.I.R. No, 61/83, registered at Police Station Mandra arc that on 12-8-1983 at about 5-30 p.m. The complainant Hussain Shah was present in his house situate at Dehra Syedan Dakhli Poothi, within the jurisdiction of Police Station Mandra. He sent his son Ghulam Abbas Shah (deceased) aged about 23 years, to the field to cut grass for the bullocks. According to the F.I.R. And the complaint, Hussain Shah complainant also followed his deceased son, Ghulam Abbas Shah, who had hardly gone 8/10 paces out of his house when the complainant saw the appellants armed with chhuris. Liaqat Hussain appellant raised a Lalkara upon which the deceased turned towards his house, but the latter inflicted a Chhuri blow on the back of the former who fell down. Ashiq Hussain Shah appellant also gave a Chhuri blow on the left buttock of the deceased. Liaqat Hussain Shah wanted to inflict another blow on the deceased, but the complainant intervened who also received an injury on his left hand. The deceased in injured condition was being taken to the hospital, but he died in the way.
According to the complaint as well as the F.I.R. The occurrence was witnessed by Ashraf Shah, lkrar Shah and Mst. Chandni Bi.
3. The motive as disclosed in the F.I.R. As well as in the complaint was stated to be that in the year 1978, the son of the complainant, namely, Nazam Shah was murdered by Mahboob Shah and Shahzad Shah. Thereafter his son-in-law Bashir Hussain Shah and his (Bashir Hussain Shah's) brother Nazir Shah were also murdered by Akhtar Hussain Shah, Noor Hussain Shah (since acquitted) along with Arab Shah, Sher Shah and Lal Shah. It is also stated that Mst. Talmeez Zohra, sister-in-law of Ashiq Hussain Shah appellant got registered a case under sections 11 and 18 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, against Ghulam Abbas Shah deceased, which was pending in the Court at Rawalpindi and 13 8-1983, a day succeeding the date of occurrence was fixed for announcement of judgment of that case.
4. Hussain Shah lodged the F.I.R. At Police Station Mandra at 6.30 p.m. On 12-8-1983, vide F.I.R.
No,61/83. During the course of investigation, the complainant got an impression that the local police are not properly investigating the case and in order to spoil his case they have introduced a fabricated version and one Zamir Hussain Shah son of Walayat Hussain Shah has been indicted for the murder of Ghulam Abbas Shah and have declared Liaqat Hussain Shah, one of the nominated accused as innocent during the investigation. The complainant moved the higher authorities against the local police but he could not get justice at their hands. He ultimately filed the complaint in the Court of competent jurisdiction out of which the present appeal arises.
5. During the course of trial of the complaint, the police officials who conducted the investigation were examined as C.Ws. Whereas the accused also examined certain persons in their defence.
6. The investigation in this case was conducted by Ghulam Shah Inspector C.W.
3. He recorded F.I.R. Exh.P.A. On the statement of Hussain Shah under section 307/34/109, P.P.C.
Hussain Shah was injured. He prepared his injury statement Exh.PJ and got him medically examined. He went to Civil Hospital, Gujar Khan and learnt that Ghulam Abbas Shah had died. As such he added section 302, P.P.C. He prepared the injury statement Exh.P.K. And inquest report Exh.P.L. Of the deceased and handed over the dead body to Khalid Hussain and Muhammad Khan F.Cs. For post-mortem examination. He visited the spot on 13-8-1983 and took into possession blood-stained earth vide memo. Exh.P.C. He arrested Ashiq Hussain Shah appellant, on 13-8-1983.
During the course of investigation the Inspector came to know that Ashiq Hussain Shah appellant, Zamir Hussain Shah and Mst. Talmecz Zohra were injured. He prepared their injury statements and got them medically examined. Liaqat Hussain Shah appellant was arrested on 12-8-1983 from Civil Hospital, Gujar Khan. On 13-8-1983, Khalid F.C. Produced before the Inspector the last worn clothes of the deceased which were taken into possession vide memo. Exh.P.F. Zamir Hussain Shah accused was arrested on 16-8-1983. He got prepared the site plan Exh.P.E. And its copies Exh.P.E./1-2.
On 21-8-1983, Zamir Hussain Shah led to the recovery of bloodstained Chhuri P.5 from his house which was taken into possession vide memo Exh.PD Ashiq Hussain Shah appellant also led to the recovery of Chhuri P.1 which was taken into possession vide memo. Exh.P.D./1. The investigating officer also prepared the rough sketch of the places of recovery of chhuris from Zamir Hussain Shah and Ashiq Hussain Shah, which are Exh.PO and Exh.P.R. Respectively. He stated that he challaned only Ashiq Hussain Shah and Zamir Hussain Shah, whereas the remaining accused were placed in column No,2 of the challan.
7. Dr. Ghayur Alam, Senior Medical Officer (P.W.8) conducted the postmortem examination on the dead body of Ghulam Abbas Shah on 13-8-1983 at 7-30 a.m. And found the following injuries thereon:-
(1) A stab wound, 1" x 1/4" cavity deep, on the back upper portion of chest, corresponding cut was present on the shirt and Bunian.
(2) A stab wound, 1" x 1/4" muscle deep, on lateral side of upper portion of left thigh including pelvis, corresponding cut was present on the Shalwar.
' The doctor opined that injury No,1 was caused by sharp-pointed weapon and was grievous and fatal while injury No,2 was simple. Both the injuries were ante-mortem. Death in the opinion of the doctor was due to shock and haemorrhage as a result of injury Nos.1 and 2. Injury No,1 was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about one hour and between death and post-mortem about 14 hours.
' On 12-8-1983 at 8.30 p.m. The same doctor examined Hussain Shah complainant and found three incised wounds, one on the index finger left hand, the second on the medial side middle finger left hand and the third on the dorsal side middle finger of left hand. All the injuries were declared simple caused by sharp-edged weapon.
8. On 13-8-1983, at 9.45 p.m. The same doctor examined Ashiq Hussain Shah appellant and found a contused wound 1-1/2" x 1/3" bone deep on head, 3-1/2" above left ear and an abrasion 1/3" x 1/4" on dorsum of left hand, apart from contused area on front middle forehead, on right side neck behind right ear and on back lower portion left side chest. All the injuries were simple caused by blunt weapon. The same doctor also medically examined Zamir Hussain Shah on 13-8-1983 and found a contused wound, 1" x 1/3" bone deep on front head, 2-1/2" above left eye-brow and an abrasion 1/2" x 1/3" on front shoulder. Both these injuries were simple, caused by blunt weapon. Mst. Talmiz Zohra who was also medically examined had two abrasions on her person one on the right side of face and the other on the left side of face. These injuries were simple caused by blunt weapon.
9. The appellants when examined under section 342 Cr.P.C. Denied the prosecution allegations.
Ashiq Hussain Shah appellant made a datailed statement which reads:- "So far the above-mentioned case is concerned it was pending against Ghulam Abbas Shah now deceased before the Additional Sessions Judge, Rawalpindi. However, Mst. Talmeez Zohra is not the daughter of Walayat Shah but she is the daughter of Shah Muhammad Ghaus. In fact deceased Ghulam Abbas Shah, armed with Kulhari, along with his co-accused, namely, Basharat Hussain Shah armed with Chhuri, Ashraf Hussain Shah, Irshad Hussain Shah armed with Sotis and Hussain Shah empty handed, tried to abduct the said Mst. Talmeez Zohra on the said date of occurrence who in company of her mother Mst. Nargis Bibi was drawing water from village well at that time. I resisted the above-said abduction by the deceased and his co-accused. The deceased inflicted blows which hit me on the head. Ashraf Shah also inflicted a hatchet blow which hit me on the head, whereas Irshad Shah inflicted hatchet blow which hit me on the right side of my neck and I fell down upon which the other accused inflicted blows with their sticks on my person. In the meantime Zamir Hussain Shah was attracted to the spot who begged for the release of Mst.
Talmeez Zohra but they did not stop, then Zamir Hussain Shah snatched Chhuri from Basharat Hussain Shah the co-accused of the deceased and when the deceased Abbas Shah tried to lift away Talmeez Zohra in his lap, Zamir Hussain Shah caused two Chhuri blows on the back side of the deceased Abbas Shah who fell down. Ashraf Shah the co-accused of the deceased caused hatchet blows on the person of Zamir Hussain Shah where after the accused ran away from the spot, for which a separate private complaint is pending before this honourable Court. I may also state that when the previous occurrence regarding the abduction of Talmeez Zohra took place I was in Army 6th Battalion at Multan and was there as a reservist. Mst. Talmeez Zohra is the real sister's daughter of Zamir Hussain Shah."
10. The trial Court placing explicit reliance on the ocular evidence furnished by Hussain Shah P.W.1, Ikrar Hussain P.W.2 and Ashraf Shah P.W. 3 concluded that Ashiq Hussain Shah and Liaqat Hussain Shah, who were named as actual assailants committed the crime and gave them the sentence as indicated above. However, the remaining three who were named as conspirators, as stated above, were acquitted.
11. I have heard, the learned counsel for the appellants, the complainant and the State and have perused the record minutely with their assistance.
' The learned counsel for the appellants has submitted that although the F.I.R. Was got registered at the earliest, but there is long-standing background of enmity, hence the statements of the eye- witnesses per se should not be believed without any independent corroboration which is lacking in the present case. The learned counsel has further submitted that during the course of three investigations, Liaqat Hussain Shah was found innocent which adversely reflects upon the conduct of the prosecution case, because if the eye-witnesses can implicate one person falsely, there is no guarantee that they have not implicated other persons falsely in this case, in view of the background of enmity, which is not denied by the parties, and even accepted by the trial Court.
' Learned counsel has next submitted that there are two versions of the occurrence, one is given by the prosecution and the other version as given by the defence is that Mst. Talmeez Zohra was being abducted by Ghulam Abbas Shah deceased with the assistance of his co-accused who were armed with hatchets and Chhuris and in self-defence Zamir Hussain Shah caused injuries to the deceased in order to frustrate the attempt of abduction, and rape upon the person of Mst.
Talmeez Zohra, who has also appeared as a defence witness in support of the defence version. He has further contended that this part of the defence version has been accepted by the investigating agency and the complainant has not explained the injuries found on the persons of Talmeez Zohra, Ashiq Hussain Shah appellant and Zamir Hussain, as the F.I.R. Is completely silent about the injuries received by the aforesaid persons which belies the version of the prosecution, hence no explicit reliance can be placed upon the ipse dexit of the ocular account which is being furnished by highly inimical and interested witnesses. He has placed reliance on The State v. Khair-ur-Rehman PLD 1960 Pesh. 50, Mukhtar alias Kalu and others v. The State 1989 P Cr. L J 957, Nadeemul Haq Khan and others v. The State 1985 SCMR 510 and Safdar Ali Wahla and another v. The State 1985 SCMR 1748.
' In addition to that, the learned counsel further vehemently argued that this is a case of two versions and the version given by the appellants is more probable and nearer to truth, the investigating officer as well as the doctor found injuries on the person of Ashiq Hussain Shah, Mst.
Talmeez Zohra and Zamir Hussain out of them, the latter two have appeared as D.Ws., in this case, and have fully supported the defence version. In that connection he has placed reliance upon Syed All Bepari v. Nibaran Mollah and others PLD 1962 SC 502 to contend that in case of free fight the parties do not generally come out with true story. In the said case, their Lordships of the Supreme Court observed that incompleteness of tale should not deter Court from drawing proper inference from evidence and circumstances.
' Learned counsel also submitted that there is no corroborative piece of evidence in the form of recovery of blood-stained Chhuri at the instance of Ashiq Hussain Shah, because it was not found stained with human blood, whereas the Chhuri P.5 recovered at the instance of Zamir Hussain Shah was found to be stained with human blood, which lends support to the defence version.
12. On the other hand, the learned counsel for the complainant as well as for the State has submitted that the F.I.R. Is not an exhaustive document. It only sets the law in motion and in fact it would seldom contain minute details. The learned counsel for the complainant elaborating his point submitted that in the present case the was lodged promptly without any loss of time and if there is some omission with respect to the pelting of stones by the witnesses on Ashiq Hussain Shah appellant, Mst. Talmeez Zohra and Zamir Hussain Shah D.Ws. As a result whereof, they received injuries, that would not adversely affect the prosecution case as a whole. He has placed reliance on Faz_alur Rehman v. Abdul Ghani and another PLD 1977 SC 529 and Fazal-ur-Rehman and 2 others vs. The State PLD 1971 Lah.
883. In the latter case it was observed by their Lordships that F.I.R. Is never supposed to be an exhaustive document giving all possible details of the incident and the fact that some of the details were not mentioned in it, did not detract from its correctness. The same view was affirmed in Khushi Muhammad v. The State 1983 SCMR 697 wherein it was laid down by their Lordships of the Supreme Court: "F.I.R. Never intended or considered to be document describing minor or incidental details of incident in question."
' The learned counsel for the complainant relying on Javid and 2 others v. The State 1985 P Cr. L J 1901, contended that in the present case the ocular account furnished by the prosecution witnesses was confidence inspiring, they gave plausible explanation for their presence at the spot, and also stood the test of cross-examination and no inherent infirmity, material contradiction, major discrepancy or dishonest improvements existed in their statements, and that the complainant Hussain Shah had injuries on his person which established his presence beyond reasonable doubt at the spot at the time of occurrence. It was submitted that the conviction of the appellants be maintained.
' Learned counsel submitted that from the very beginning the complainant has been informing the higher authorities that the local police is bent upon spoiling his case, although in a promptly lodged F.T.R. The complainant has named Liaqat Hussain Shah and Ashiq Hussain Shah as the assailants of his son Ghulam Abbas Shah deceased, and his evidence is being corroborated by the medical evidence brought on the record as well as the injuries sustained by Hussain Shah in the transaction. The doctor has categorically stated that the injuries on the person of Hussain Shah were not self-suffered. The learned counsel has also challenged the recovery of blood-stained Chhuri from Zamir Hussain Shah and in that respect he has referred to the testimony of Ghulam Shah Inspector C.W.3 which belies the case of the defence, who admitted in evidence: "The recovery of Chhuri P.5 from Zamir Hussain accused was affected on 21-8-1985." He also admitted in cross-examination: "As per record, it is correct that Chhuri P.5 recovered from Zamir Hussain accused was sent to the office of the Chemical Examiner on 20-8-1983. The parcel came back on 23-8-1983 with objection and ultimately it was sent on 28-8-1983."
' The learned counsel for the complainant next contended that mere relationship of the witnesses per se is not sufficient ground to discard their natural and straightforward evidence. The only criteria which is consistently being followed by the superior Courts is that in case of interested and inimical witnesses the Courts generally look for corroborative piece of evidence, which according to the learned counsel is forthcoming in the shape of medical evidence as the deceased received two stab wounds on his person and Hussain Shah complainant received injuries on his left hand while snatching the Chhuri from Liaqat Hussain Shah appellant, as per the statement of the complainant: "Liaqat Hussain accused was going to inflict a second blow of Chhuri which I held by my left hand and my hand was injured. I held the Chhuri to save my son."
' The learned counsel submitted that the prosecution has given plausible explanation for the injuries found on the persons of Ashiq Hussain Shah appellant, Zamir Hussain and Mst. Talmeez Zohra as in the statement under section 161, Cr.P.C. Recorded by the investigating officer immediately on his arrival, Ikrar Hussain Shah P.W. 2 stated that they pelted stones after the incident was over on the accused persons in frustration. Thus Mst. Talmeez Zohra, Zamir Hussain and Ashiq Hussain Shah received injuries.
' Lastly, the learned counsel for the complainant in reply to the arguments of the learned counsel for the appellants submitted that any omission on the part of the trial Court to give oath after the witnesses were recalled for further cross-examination would not be an irregularity which cannot be cured under section 537 Cr.P.C. He submitted that in view of section 13 of the Oaths Act, 1873, coupled with section 537 Cr. P C a trial is not vitiated unless it is shown that the accused person has been prejudiced due to certain irregularity. Section 13 of the Oaths Act also envisages that proceedings and evidence shall not be invalidated by omission of oath or irregularity. He submitted that the present case of the prosecution is far better than the case cited by defence i,e, The State v. Abdul Samad and another PLD 1984 Quetta 72, because in that case oath was not administered to a witness from the very beginning, in the present case the trial Court gave oath to the witnesses, but there is some omission when those witnesses were recalled for cross- examination, it was not mentioned that the witnesses on recall gave evidence on solemn affirmation. This may be a clerical error, in an case, the appellants have not been prejudiced by this insignificant error of omission which is curable under section 537, Cr.P.C. Read with section 13 of the Oaths Act.
13. I have considered the respective contentions raised by the learned counsel for the parties. In order to resolve the controversy of two versions, I have to refer to the law laid down by their Lordships of the Supreme Court in Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502, where in free fight, it has been observed:- "Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an `adversary proceeding' to minimize one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances."
14. At this stage, it would be advantageous to reproduce the defense version given by Ashiq Hussain Shah in the complaint, which reads:- "On 12-8-1983 at about 5-00 p.m. I was present at my home and Mst. Talmeez Zohra, who is my cousin and sister-in-law, along with her mother Mst. Nargis Bibi went to the well to take water. I heard their alarm and reached the spot and saw Ghulam Abbas Shah deceased, Irshad Shah, Ashraf Shah accused armed with hatchets, Murtaza Shah and Azhar Shah, and Amjad Shah accused armed with Sotis, Basharat Shah accused armed with Chhuri and Hussain Shah accused empty handed. Murtaza Shah and Basharat Shah caught hold Mst. Talmeez Zohra and dragged her 2-3 paces. I tried to rescue her from their hands but Ghulam Abbas Shah, Ashraf Shah and Irshad Shah who were armed with hatchets, inflicted hatchets blows on my head and neck.
Murtaza Shah and Amjad Shah and Azhar Shah inflicted Sotis blows on my left shoulder, left side of chest and left hand. In the meanwhile Zamir Hussain Shah also reached the spot and asked Ghulam Abbas Shah (deceased now), who had lifted Mst. Talmeez Zohra for taking away, to leave her. But since he did not do so, Zamir Hussain Shah snatched chhuri from Basharat Hussain Shah accused and inflicted chhuri blows on the hip and back side of Ghulam Abbas Shah deceased.
Thereafter, Ashraf Shah inflicted hatchet blow from the wrong side on the head and shoulder of Zamir Hussain Shah."
15. Applying the principle of law laid down in Ali Bepari's case the defense version if put to scrutiny seems to be highly imaginative and fanciful, and against the circumstantial evidence, as it would be a rare phenomenon that Hussain Shah complainant who is the father of Ghulam Abbas Shah deceased, whose presence is established due to injuries on his persons would firstly substitute, Liaqat Hussain Shah in place of Zamir Hussain who had inflicted injuries on the person of Ghulam Abbas Shah, secondly, if this version is put to scrutiny further, I find that all those persons who were armed with deadly weapons on behalf of the complainant side, could not prevent the fatal injury to the deceased by the opposite party, and Zamir Hussain Shah, did not receive any incised wound on his body at the hand of the other party, this fact alone negates the version of the defence, and thirdly, according to the defence version the complainant party was armed with hatchets but they failed to cause any substantial damage to Mst. Talmeez Zohra, Ashiq Hussain and Zamir Shah, who received only abrasions, contusions, which could only be caused with stick or stones and not with hatchet, as normally hatchet causes sharp-edged injuries.
16. The two versions, one given by the prosecution and the other given by the defence, if put in juxtaposition, then I find that the version given by the defence is not supported by any direct or circumstantial evidence, because the explanation furnished by the prosecution is plausible and nearer to truth. In case the complainant party would have been armed with formidable weapons, such as hatchets and Chhuris then they would not have lost their young man in the scuffle, which proves, that the version given by the prosecution is nearer to truth. The statement of the Investigation Officer who appeared as C.W.3 discussed above also belies the defence version.
17. The upshot of the above discussion is that the prosecution has proved its case against the appellants beyond reasonable doubt and there is no force in the C appeal which is dismissed.
Benefit of section 382-B Cr.P.C. Is allowed to the appellants.
18. The complainant Hussain Shah has filed Criminal Revision No,3 of 1988, for the enhancement of sentence of the appellants from imprisonment for life to death. I have considered the submissions of the learned counsel for the complainant, but find no force in them, because according to the F.I.R the murder took place due to family honour, as it is one of the grounds that the 0 deceased Ghulam Abbas Shah was involved in the Hudood case, when he tried to molest Mst. Talmeez Zohra.
Hence in the circumstances the trial Court rightly imposed the lesser sentence of imprisonment for life upon the appellants, extreme penalty of death was not called for in this case. The revision petition is dismissed in limine. .