' Abdul Sattar, Muhammad Zubair appellants sons of Alam Khan and Alam Khan son of Muhammad Hussain accused (since acquitted) faced trial under section 337/324/34, P.P.C. Before the learned Assistant Commissioner/ Magistrate Section 30, Attock who vide judgment, dated 25- 7-1994 convicted Abdul Sattar and Muhammad Zubair appellants as under:-- "Abdul Sattar"
(1) He was sentenced for the offence under section 337-D for enabling his co-accused Zubair to inflict two "Judi Jaifah" injuries on the person of Muhammad Rizwan to pay Rs,58,537 (two times) as Arsh or in default of payment of "Arsh" total amounting to Rs,1,17,074 and to undergo simple imprisonment till payment thereof and undergo five years' R.I. For each offence as Tazir.
(2) He was sentenced under section 337-F(iv) for causing one Jurh Mudihah on the person of Muhammad Rizwan to pay Daman at the rate of Rs,10,000 or in default of payment of Daman to undergo S.I. Till payment thereof and to undergo two years' R.I. As Tazir.
(3) He was sentenced under section 337-F(iv) for causing Jurh Mudihah on the person of Muhammad Zaheer and to pay Rs,10,000 as Daman or in default of payment to undergo S.I. Till payment thereof and to undergo two years' R.I.
(4) He was sentenced, under section 337-F(iii) for causing Jurh Mutalahimah on the person of Muhammad Zaheer, to pay Rs,10,000 as Daman or to undergo simple imprisonment till payment thereof and to undergo one year's R.I. As Tazir.
' The sentences referred at (1) and (2) above shall run consecutively while the remaining sentences shall run concurrently. The amount Rs,1,17,074 realized as Arsh and Daman referred above shall be paid to Muhammad Rizwan injured while Rs,20,000 was ordered to be paid to Muhammad Zubair accused. The appellant was, however, given benefit of section 382-B, Cr.P.C.
"Muhammad Zubair"
(1) He was sentenced for the offence under section 337-D for causing two Jurh Jaifah injuries on the person of Muhammad Rizwan to pay Rs,58,537 (on two counts) as Arsh or in default of payment of Arsh total amount to Rs,1,17,074 and to undergo simple imprisonment till payment thereof and to undergo five years' R.I. For each offence as Tazir.
(2) He was sentenced under section 337-F(iv) for causing one Jurh Mudihah on the person of Muhammad Ri?Wan to pay Daman at the rate of Rs,10,000 or in default of payment of Daman to undergo S.I. Till payment thereof and to undergo two years' R.I. As Tazir.
(3) He was sentenced under section 337-F(iv) for causing Jurh Mudihah on the person of Muhammad Zaheer and to pay Rs,10,000 as Daman or in default of payment to undergo simple imprisonment till payment thereof and to undergo two years' R.I. As Tazir.
(4) He was sentenced under section 337-F(iii) for causing Jurh Mutalahimah on the person of Muhammad Zaheer and to pay Rs,10,000 as Daman or to undergo simple imprisonment till payment thereof and to undergo one year's R.I. As Tazir.
' The sentences referred at (1) and (2) above shall run consecutively while the remaining sentences were ordered to run concurrently. The amount Rs,1,17,074 realized as Arsh and Daman referred above shall be paid to Rizwan injured while Rs,20,000 shall be paid to Muhammad Zubair injured from the amount of Arsh and Daman realized from Zubair accused. He was also given benefit of section 382-B, Cr.P.C.
' However, Muhammad Alam son of Muhammad Hussain was acquitted of the charge.
2. Criminal Appeal No,93 of 1994 has been filed by Abdul Sattar and Muhammad Zubair appellants challenging their conviction and sentence whereas Criminal Revision No,88 of 1994 has been filed by Muhammad Zaheer injured P.W.1 complainant for the enhancement of sentences and against the acquittal of Alam Khan. This judgment will dispose of both these matters.
3. The allegations against the accused according to Muhammad Zaheer injured P.W.1 complainant of the case are that on 20-9-1993 at 1-45 p.m. He alongwith his paternal-cousin Rizwan was going to mosque to offer prayers. When they reached in front of the house of Abdul Khaliq, all the three accused appeared. Alam Khan (accused since acquitted) raised Lalkara to catch hold of Zubair and Rizwan. Alam Khan caught hold of Muhammad Rizwan from his front side and Muhammad Zubair appellant caused a Chhuri blow on the belly of Rizwan. When Zaheer P.W. Tried to rescue Rizwan, Zubair appellant inflicted a Chhuri blow on the left shoulder of Zaheer. Then Abdul Sattar accused caught hold of Zaheer while Zubair appellant caused a Chhuri blow on the back of Zaheer.
Thereafter, Abdul Sattar appellant caught hold of Rizwan who was inflicted two Chhuri blows on his right shoulder and left side of back by Zubair appellant. On hearing noise raised by the injured P.Ws.
Muhammad Saleem and Pervaiz P.Ws. Attracted to the spot and the accused left the spot. Motive behind the scene was stated to be the election rivalry between the two groups.
4. The prosecution in support of its case examined as many as six witnesses. Muhammad Zaheer injured P.W.1 is complainant of the case. P.W.2 Muhammad Rizwan is another injured eye-witness.
P.W.3 Muhammad Pervaiz is also an eye-witness who reached at the spot on hearing the noise raised by P.W.1 and P.W.2 in an injured condition. Doctor Muhammad Tufail P.W.4 medically examined Muhammad Zaheer P.W.1 and Rizwan P.W.2. Ghulam Shabbir P.W.5 A.S.I. Recorded the formal F.I.R. Exh.PA./1. P.W.6 Muhammad Riaz A.S.I. Recorded the statement of Muhammad Zaheer injured P.W.1 Exh.P.A. In Civil Hospital, Attock, prepared injury statement Exhs.P.G. And P.F. Of both the injured, prepared site plan Exh.P.I. Took into possession Chhuri P.1 used in the occurrence vide memo. Exh.P.J. Investigated the case and challaned the accused. During investigation, he found Abdul Sattar convict/appellant innocent and placed him in Column No,2 of the challan. The prosecution gave up Sarwar, Saleem and Muhammad Khan P.Ws. As unnecessary.
5. The accused persons when confronted, denied the charge and claimed to be involved innocently. In their statements under sections 342 and 340(2), Cr.P.C. Deposed that the victims are known for their quarrelsome and domineering conduct and that they have a quarrel with one Nadeem etc. In which they were injured. However, they did not produce any defence evidence.
6. Learned counsel for the appellants contended that the order passed by the learned trial Court is based on surmises and conjectures; Alam Khan being father of the two appellants/convicts was innocently involved as is customary particularly in rural areas to involve whole male family members. Abdul Sattar was declared innocent by the police with the consent of both the parties; the eye-witnesses are real cousins and the evidence of P.W.3 is not confidence inspiring as admittedly he reached at the spot after the occurrence; the recovery of Chhuri P.1 has not been proved beyond any shadow of doubt and the Investigating Officer in examination-in-chief deposed that Abdul Sattar was declared innocent with the consent of both the parties during the investigation. Further, contended that there are material improvements and contradictions in the statements of the P.Ws. And the learned trial Judge without pitting the evidence of both the sides in juxtaposition and without giving weight to the defence version illegally convicted the accused and the punishment awarded to the accused/convicts is harsh and is also un-Islamic.
7. On the other hand, learned counsel for the complainant vehemently contended that the manner in which Abdul Sattar convict during investigation was declared innocent is not approved by the superior Courts; the appellants have not come with clean hands; Muhammad Rizwan injured P.W.
Remained in hospital for more than 14 days; the injured I-.Ws. Are the natural witnesses; F.I.R. Was promptly lodged without any delay; the evidence of P.W.3 Pervaiz is relevant under Articles 19 and 20 of Qanun-e-Shahadat; the prosecution witnesses have fully supported the prosecution version; the sentence awarded by the learned trial Court is not in accordance with section 337-W, P.P.C. As the ocular account has been corroborated by the medical evidence.
8. I have heard the 'arguments advanced by the learned counsel for the parties and have gone through the record with their able assistance.
9. So far as the motive is concerned, the prosecution claimed it as election rivalry between two groups. Abdul Khaliq brother-in-law of Alam Khan (since acquitted) contested election against one Saleem uncle of the injured P.Ws. About 2-1/2 years prior to the occurrence belonging to the group of the complainant party. The candidates who contested election against each other also reside in the same vicinity and nothing happened among the groups prior to the occurrence after election during the period of 2-1/2 years. If there would have been any political rivalry based on election basis, the occurrence would have taken place much earlier. There seems no plausible reason to believe in the motive as mentioned in the F.I.R. Because Muhammad Saleem who lost election with Abdul Khaliq, brother-in-law of Lal Khan could have the grudge or vengeance against Abdul Khaliq and not the party of Abdul Khaliq have any grievance against Muhammad Saleem and his groups who lost election. Muhammad Saleem would have been the natural witness as he was cited as P.W. But he has not been produced by the prosecution though it is not necessary that the prosecution should produce each witness but the witness who is required to be produced to resolve the issue involved if not produced damages the version of party who withholds such witness. Hence, the motive is not proved.
10. So far as the injuries are concerned, Muhammad Zaheer P.W.1 sustained two injuries. Injury No,1 was declared Jurh Mudihah while injury No,2 was declared Jurh Mutalihamah whereas Muhammad Rizwan P.W.2 sustained one stab wound on his belly while another stab wound on his back and a wound with sharp-edged weapon on right shoulder. Injuries Nos.1 and 2 were declared as Jurh Mudihah. All these injuries were caused with sharp-edged weapon. Abdul Sattar accused has been attributed the role of caught holding of the injured person to enable Muhammad Zubair convict to inflict the injuries to both the injured P.Ws. P.W.6 Investigating Officer stated in examination-in-chief that during investigation in the presence of both the parties with their consent he declared Abdul Sattar appellant innocent and the fact was approved by the S.H.O. As well as D.S.P. Concerned.
Neither P.W.6 was declared hostile nor any question or suggestion was put to him by the prosecution. Though the report of the Investigating Officer is not binding on the Court yet cannot be ignored when made at the trial stage under the oath. The learned counsel for the complainant relied upon case titled Mst. Bashiran Bibi v. Nisar Ahmad Khan PLD 1990 SC 83 wherein it has been observed that procedure of swearing on Holy Qura'n (oath proceedings) is not applicable in criminal proceedings under Article 163 of the Qanun-e-Shahadat (10 of 1984).
11. I am afraid, the law laid down in the aforementioned case is not applicable to the facts of the case in hand. As the observations were made by their Lordships during the proceedings of a bail matter while in case in hand the Investigating Officer made the statement during the trial being under oath; even the method during the investigation might be against the law at this stage firstly his evidence cannot be ignored when the prosecution neither raised any objection to his this piece of evidence nor declared him as hostile. Even the learned trial Court did not put any question to the witness though the trial Court was competent to clarify the issue. The complainant party knowingly that Abdul Sattar has been declared innocent neither moved hierarchy of the police for reinvestigation nor filed private complaint under section 200, P.P.C. Or agitated at any stage though the appellants moved an application for reinvestigation of the case.
12. The occurrence took place on 20-9-1992 and the accused/appellants were arrested on 24-9- 1992. Muhammad Zubair convict, as deposed by the P.W.6 Investigating Officer, during the investigation produced Chhuri P.1 before him on 24-9-1992 which was taken into possession vide memo. Exh.P.J. The contention of the learned counsel for the appellant carries weight that the recovery of Chhuri P.1 has not been proved beyond any shadow of doubt as neither any recovery witness was produced before the Court nor the report of Forensic Science Laboratory has been submitted that whether the incriminating weapon was ever stained with human blood or not. This aspect of the case makes the recovery of Chhuri doubtful.
13. According to the medical report and ocular account the two injured P.Ws. Sustained five injuries in total on their persons. Learned counsel for the complainant contended that one accused cannot inflict such five injuries to two P.Ws. Abdul Sattar appellant has been attributed the role of catch holding the injured persons to enable the principal accused Zubair to inflict injuries. Muhammad Zubair as well as Rizwan injured P.Ws. Are of 20 years age while Abdul Sattar is of 30 years. It is unbelievable that Abdul Sattar could have caught hold of both the injured P.Ws. At a time; similarly, as alleged that Alam Khan caught hold of Rizwan when Zubair inflicted one injury to him is unbelievable.
14. It may be observed that the occurrence took place in a thickly populated area in front of a mosque at 2-00 p.m. Neither the complainant party nor the appellants' party have produced a single independent witness in support of their version. The injured P.Ws. As well as the accused/convicts appeared as their own witnesses though both the parties claimed to belong different political groups of the area but none cared in the area to support the version of any one of them, meaning thereby the facts of the case have been concealed by both the parties.
15. In case Zareen Shah and 2 others v. The State PLD 1974 SC 376 in the similar circumstances alleging that one accused caught hold of the deceased and the principal accused stabbed the deceased, on the fact of the case the accused was given benefit of doubt.
16. As already observed, the occurrence took place in front of the mosque and thickly populated area, in the ordinary course most of the people were expected to be present at the spot; from the attitude of residents of the vicinity, it is necessary. To hear in mind that in rural areas where such offence is committed as a result of existing fiction and duet, family feuds or merely in order to satisfy the proverbial age, independent villagers are always reluctant to come forward for evidence purposes. In such circumstances, the task of finding out as to which of the persons participated in the, crime is difficult one but the Courts have always tried to sift the truth from the falsehood and I would also see that if there is a slightest doubt about the presence of any accused person, he must get the benefit thereof.
17. I have gone through the evidence on record and in the light of dictum laid down in case of Riaz v. State 1960 SC 367, I am of the view that the evidence of injured P.Ws. With regard to Alam Khali and Abdul Sattar cannot be relied upon without some sort of independent evidence as observed by their Lordships in supra case; corroboration has to be sought from other circumstances as the evidence, should, however, be such which points to the inference that the accused whose case is being considered did not participate in the commission of offence. I, therefore, hold that neither Alam Khan nor Abdul Sattar convict took part in the occurrence and have been involved in the case just to entangle the whole family. In fact, as observed by the learned trial Court it was a show of youth on both sides and the elders did not participate. So far as Muhammad Zubair convict is concerned, in spite of the fact that recovery of Chhuri P.1 from the convict has not been proved beyond any shadow of doubt and other short comings of the prosecution, I am of the considered opinion, as already observed, being a show of youth; the convict alone inflicted the injuries to both the injured P.Ws. And the learned trial Court rightly convicted and sentenced him. The sentences awarded by the learned trial Judge to the extent are adequate and need no interference and are confirmed except all the sentences shall run concurrently instead of consecutively. Further, the convict shall he entitled to full relief under section 382-B, Cr.P.C. As ordered by the trial. Court.
18. In view of what has been stated above, the appeal succeeds to the extent. Mentioned above and I find no force in the revision petition which is accordingly dismissed. Abdul Sattar appellant is on bail. His surety bonds shall stand discharged.