' RAJA MUHAMMAD KHURSHID, J.--- A case under section 302/ 307/325/34, P.P.C. Was registered against Ihsan Ullah, Muhammad Asif, Muratab Ali and Shahid Hussain accused at Police Station, Sadar Raiwind District Kasur for an occurrence which took place during the night falling between 16th and 17th June, 1990 at about 3-00 a.m. Or 4-00 a.m. In the area of village Handal 15 kilometers towards south of police station.
2. According to the F.I.R. Lodged by Khurshid Akbar (P.W.8), he along with his deceased son Shahbaz were sleeping in their Dhari on the cots: At about 3-00 a.m. Or 4-00 a.m., while awake he saw Ihsan Ullah accused armed with .12 bore gun, Shahid Hussain armed with hatchet, Muhammad Asif equipped with carbine and Muratab Ali armed with iron bar (Saria), entering Dhari. Ihsan Ullah accused fired gun at deceased while the latter was asleep. The fire hit the chest and left side of abdomen of the deceased. Muratab opened attack on the complainant with Saria thereby causing injuries on his left upper arm and head. In the meanwhile Muhammad Asif accused fired from his carbine hitting left hand of the deceased who died on the spot. The thumb of the left hand of the deceased was separated due to the aforesaid firing. Shahid accused gave blows on the left arm of the complainant from the wrong side of the hatchet. As a consequence the wrist of the complainant was fractured. Asif also gave a butt blow of his carbine to the complainant, who raised noise which attracted Zafar Ali P.W.9, and Asghar Ali given up P.W., who were allegedly on their way to the Dhari for fetching milk. The aforesaid P.Ws. Came running to the spot, whereupon the accused escaped towards bridge Rajba Handal while making fires in the air. The aforesaid witnesses had identified all the accused in the moon light. The bone of contention leading to the F.I.R. Consisted of a dispute regarding inheritance over a land.
3. The police submitted the challan to the Court against the four accused. The trial was conducted by Sardar Ghulam Farid, the then learned Sessions Judge, Kasur, who convicted Ihsan Ullah accused to death and a fine of Rs,2,000 or in default to undergo one year's S.I. The aforesaid accused was also directed to pay compensation to the heirs of the deceased under section 544-A vide his judgment, dated 15-12-1991. By the same judgment Muhammad Asif was also convicted under section 302/34, P.P.C. And sentenced to imprisonment for life, with a fine of Rs,2,000 or in default to undergo one year's S.I. The aforesaid accused was also directed to deposit a sum of Rs,50,000 to be paid as compensation to the legal heirs of deceased Shahbaz or in default to undergo six months' S.I. The aforesaid Asif was also convicted under section 307, P.P.C. For causing injuries to Khurshid Akbar complainant and sentenced to 3 years' R.I. With a fine of Rs,5,000 or in default to undergo 6 months' S.I. The fine if recovered, was directed to be paid as compensation to the legal heirs of the injured P.W. Both the sentences to Muhammad Asif were directed to run concurrently.
4. The learned Sessions Judge made a reference (Murder Reference No,537 of 1991) for confirmation of death sentence passed upon Ihsan Ullah, who also preferred Criminal Appeal No,26 of 1992 challenging his conviction and sentence on the charge under section 302/34, P.P.C. Muhammad Asif accused also filed Criminal Appeal No,8 of 1992 challenging his conviction and sentence passed against him under section 302 and under section 307, P.P.C. Respectively. A Criminal Revision No,353 of 1992 was filed by Khurshid Akbar complainant against the acquittal of Muratab Ali and Shahid Hussain accused.
5. We have heard the learned counsel for the parties and have also gone. Through the evidence with their assistance. It was contended by the learned counsel for appellant Ihsan Ullah that motive of the occurrence was not proved by the prosecution at the trial. Likewise the evidence of Zafar Iqbal P.W.9 was not believed by the trial Court whereas Asghar Ali was not produced by the prosecution having been given up as unnecessary. The only witness complainant namely Khurshid Akbar P.W.9 was believed to base the conviction of the appellants by the learned trial Court. In this regard, it was contended that the close examination of the testimony of the complainant P.W. Will reveal that he had been consistently improving his statement at the trial in order to bring it in line with the medical evidence, which had already been examined before he could enter the witness- box. It was, therefore, urged that such a witness would be considered to be interested and keen to advance the prosecution case to secure the conviction of the accused persons at all costs. Such an interested witness should not be believed on a charge, which may result into sentence of death.
In this regard, the learned counsel for the appellants submitted that recoveries in this case were not of any use. The gun P.3 recovered from Ihsan Ullah vide memo. Exh.P.G. Was not seen by any independent witness and as such would not carry any corroborative value. The carbine recovered from Muhammad Aiif accused vide memo. Exh.P.H. Also suffers from the same defect and should not have been taken into account to provide corroboration to the ocular account of occurrence.
The recovery witness to this case namely Niaz P.W.6 though brother of the deceased was disbelieved by the trial Court whereas Liaquat Ali was given up having been won over, which would lead to an influence that if examined, he would have stated against the prosecution. Reliance upon Babu Khan, S.I. P.W.10, in respect of recoveries could not be made particularly when his investigation and conduct were also subjected to severe criticism by the learned trial Judge in his judgment. The empty of carbine attributed to Muhammad Asif did not match with the weapon and as such made the case of the prosecution further doubtful.
6. The learned counsel for the appellant contended that the medical evidence also did not provide any corroboration to the case of the prosecution as set up in the F.I.R. However, a conscious attempt was made by the complainant during the trial to make improvement as referred to above to bring his cage to conform to the medical evidence, but such an attempt would not be of any help to the prosecution, rather it will damage the prosecution case beyond any repair. The ocular account of occurrence given in the F.I.R. And even by the complainant was at variance regarding the nature of injuries. In such a situation there were material discrepancies between the two sets of evidence so as to render the prosecution case highly doubtful. It was particularly so because the motive in respect of inheritance of Mst. Inayat Bibi was not proved though the learned trial Judge wrongly interpreted the story of motive on the basis of document Exh.D.G. Showing litigation over a question of inheritance regarding Mst. Rashida Bibi pending in the Revenue Court. A perusal of this document will rather show that the complainant side had motive against the accused persons as they were cited as respondents/defendants in those proceedings having usurped the right of accused party. The finding of the trial Court would not therefore, be sustainable on the question of motive being topsy-turvy. The F.I.R. Was got prepared at the spot and therefore, the scope for deliberation or preliminary investigation could not allegedly be ruled out. The evidence would rather suggest that the story about the prompt F.I.R. Was negated as it seemed that the case diary was stopped to prepare relevant papers such as injury statement etc. In the light of the medical evidence coming through the medico-legal report of the injured P.W. And post-mortem report of the deceased. Since the prosecution allegedly failed to prove its own motive, the motive.. Following from the defense evidence could not be successfully utilized in favor of the complainant. The, testimony of the complainant as P.W.8 was also seriously questioned on the ground that either he was not present at the spot or he had not actually seen the happening being in sound sleep. It was improbable that he will be awaking on the late mid night i,e, 3-00 a.m. And 4-00 a.m., which are the deep sleep hours. The injuries on the person of the complainant were also stated to be dubious fabricated and not free from suspicion due to their nature. The ocular account was allegedly inconsistent with the position of the dead body visa-a-visa whether the same was on the cot or on the ground and that deliberate attempts were made to meet the consistency but without any effect. It was,' therefore, submitted by the learned counsel for the appellants that the case of the prosecution being highly doubtful should not be given any credence particularly when on the basis of the same evidence two out of the four accused have already been acquitted.
7. While concluding the arguments, the learned counsel for the appellants pointed out that the appellants were falsely named in the case out of enmity and political rivalry although it was a blind murder having been committed during the dead of night.
8. The learned counsel for the prosecution however, came up with the arguments that the story put up by the injured complainant P.W. Was truthful and there was no scope to entertain any doubt that the occurrence was no seen by him. It was particularly so because the F.I.R. Was lodged without any delay on the statement of the complainant recorded at 6-15 a.m. On the same morning and that the formal F.I.R. Was registered at 7-00 a.m. And there was no time for deliberations or twisting the story, which was stated in natural manner by the complainant.
Secondly the complainant having been injured, during the occurrence was medically examined on the same morning at 11-00 a.m. And 5 injuries were found on his person out of which one was lacerated wound, a swelling and there were three bruises on his body. Injury on the head being on vital part of the body would suggest that there was no fabrication or manipulation of the injuries as alleged by the other side.
9. Lastly it was contended by the learned counsel for the prosecution that ocular account of occurrence given by the complainant was fully supported by the medical evidence at the trial. The motive was also admitted though halfheartedly by the accused by stating that there was a land dispute resulting into some litigation by virtue of which one of the acquitted accused had obtained possession. It was, therefore, contended that the prosecution had proved its case in toto beyond any reasonable doubt.
10. We have taken into consideration the arguments addressed at the bar and the evidence produced at the trial. It is true that there is only one witness i,e, Khurshid Akbar complainant, who has been believed in the Court below, but the other witness namely Zafar was disbelieved and yet another eye-witness Asghar Ali was given up. Thus, we are left with only one witness, who is father of the deceased and was allegedly sleeping in the same Dhari where his son was done to death. It is true that presence of Zafar All P.W.9 and Asghar Ali given up P.W. Might be doubtful because they would not normally come at the early hours of morning to fetch the milk as .Alleged by the complainant. So after exclusion of their evidence, the only witness which can be taken into consideration is the complainant himself. It is now well-established that quality and not the quantity of the evidence is more important to prove a case. Keeping that dictum in view it can safely be said that if a solitary witness inspires confidence of being trujthful and trustworthy, the principle of safe administration of justice would require that reliance may be placed on such witness. Now coming back to Khurshid Akbar complainant, as 'stated above, he is father of the deceased and was sleeping in the same place, where the occurrence was committed. According to him he had awoken and had seen accused entering the Dhari to commit the occurrence.
Although he had named 4 accused in the case, out of which 2 were acquitted by the trial Court extending them the benefit of doubt but that would not make Khurshid Akbar complainant a liar so as to be disbelieved regarding the whole occurrence. It is now well-settled that the principle of "falsies in Uno falsies in omnibus" has undergone change in the recent years and the dictum of "sifting the grain out of the chaff" has come to be recognized by the Courts in the light of present social structure as nobody is ready to run the risk of poking his nose into the blood of others. This sense of insecurity has deterred even the most conscientious and responsible citizens to hold back even if the occurrence is seen by them. So long as, this state of affairs exists in the society, proper sifting of evidence would be essential for maintaining the balance of justice qua the victim and the offender. There is also another tendency, though unfortunate, in our society that belabored effort is made to involve the innocent persons along with real culprit so as to perpetuate agony and grief to the opposite side.
11. It is the function of the Court to see that no innocent person should be victimized or sent to gallows whereas real culprit should not be allowed to escape scot free. It is for that reason that the Courts of justice have to be cautious at time to see that a person with soiled hands should get his due whereas a person with clean hands should be protected. In that perspective, the principle of benefit of doubt is to be re-evaluated. Though this doctrine is deep-rooted in our system of criminal jurisprudence, it must come into play in cases in which the facts and circumstances tall for its application to promote the ends of justice. It is true that it must be kept within bounds, still if it arises out of the established facts palpable in the evidence of the case as a whole, it should not be denied to an accused person, whose liberty turns entirely on just and proper application of this principle. It is rightly said that there should be reasonable and genuine doubt, not an artificial doubt of which the accused should get benefit not as a matter of grace but as a matter of right. It, therefore, follows that benefit of doubt may be given to an accused only where the doubt arises from the facts of the case and is inherent in the circumstances of each case. It cannot be given if it is of trivial nature and only resides in the mind and not established through evidence. The maxim that it is better that ten guilty persons be acquitted rather than one innocent person be convicted, does not mean that even an imaginary, unreal and improbable doubt is enough for holding the accused not guilty, if the evidence on the whole, points to the conclusion on which a prudent man can hold that the accused is guilty. .12. Applying this test to the facts of this case, every bit of evidence has to be evaluated for safer administration of criminal justice rather than to condemn it as a whole on the premises that some of the accused were given the benefit of doubt and acquitted by relying on the same evidence.
13. In the light of above discussion, the statement of Khurshid Akbar is to be tested as to how far and to what extent it can be relied upon to satisfy the ends of justice. It is true that the complainant is the father of the deceased. Hence, there will be a natural instinct within him to see that at least real culprit of his son should not be allowed to escape although he may be influenced by the prevalent unhealthy practice of throwing wider net to involve some more persons to bring maximum harm to other side.
14. The complainant Khurshid Akbar was also injured during the occurrence. A question was however, raised that the injuries on his person were fabricated or fictitious with the object of showing his presence at the scene. This argument does not appear to be convincing because fabricated injuries or forged wounds, are often cut wounds, occasionally stab wounds and sometimes bruises. The contused or lacerated wounds are rarely fabricated on account of the pain they cause and the force required to produce them. Still rare are the firearm injuries and burns. The fabricator usually produces only that much of injury as he thinks necessary to sustain a story. He is careful to avoid doing any serious harm to himself. The injuries are therefore, usually multiple, superficial and not sustained on vital part of the body. (Reference. Parikh's Textbook of Medical Jurisprudence and Toxicology, p.256).
1.5. Keeping the above test in view the injuries on the person of the complainant needs to be taken into consideration to find out whether those were fabricated through friendly hand or were inflicted by enemy hand. He suffered five injuries according to the statement of Dr. Muhammad Sharif P.W.7.
AU the injuries were caused by blunt weapon. The injury No,1 was lacerated wound size 3-1/2 c.m.
1/2 c.m. Muscle deep on the top of the head. An injury like this cannot be inflicted through friendly hand because it is on the vital part of the body such as head. In such a situation it cannot be said that injuries on the person of complainant Khurshid Akbar were produced through friendly hand or were forged or fictitious. On the contrary, all these injuries on the person of the complainant would negate the assertion of the appellants about his (complainant) absence from the spot. Rather it will confirm his presence at the place of occurrence.
16. Keeping the above factors in view, it will be easy to deal with the case of the present appellants before us. Out of them again there is differentiating line between the accused Ihsan Ullah and Muhammad Asif which has to be recognized for the "safe administration of criminal justice.
17. Muhammad Asif accused had allegedly fired with carbine at the deceased, had caused injuries with Butt blows on the head of complainant. But this injury is not distinguishable from the injury attributed to Muratab i,e, acquitted accused which he had inflicted with iron bar (Saria) on the head of the complainant. Likewise the crime empty collected from the spot, and fired from the carbine of Muhammad Asif accused was not found wedded to it by the Ballistic Expert. In such a situation, the case of Muhammad Asif has to be separated out of abundant care and caution from his co-accused namely Ihsan Ullah, who has been linked with the fatal fire on the deceased with his gun P.3, the empty of which was also wedded to his gun. The legal and equitable compulsion would require extension of doubt to Asif accused so as to keep the fountain of justice clear of any doubt qua his culpability. In pursuance of what has been said above, Muhammad Asif accused will also be entitled to the benefit of doubt firstly because the crime empty discharged from his weapon was not wedded to it and secondly the injury attributed to him on the thumb of the left L, arm of the deceased was caused with blunt weapon as per medical evidence. n Hence these two factors would create a reasonable doubt regarding the use of gun by Asif accused during the occurrence. On the contrary, the fire attributed to Ihsan Ullah is supported by the Forensic Expert.
According to his report, crime empty was wedded to the gun used by the aforesaid accused during the murder of the deceased. The fire-arm injuries attributed to him by the complainant are in line with the medical evidence. Thus, it is proved beyond any reasonable doubt that Ihsan Ullah accused committed the murder of Shahbaz deceased.
18. The defense version put up by Ihsan Ullah accused is least plausible as he had taken up the general plea that it being a blind murder, he was involved in it due to political rivalry.
19. In view of the above discussion, the case against Muhammad Asif was not free from reasonable doubt. He (Asif) is given the benefit of doubt and acquitted of charges against him. He shall be set at liberty forthwith if already not on bail.
20. However, the case against Ihsan Ullah accused has been proved beyond any reasonable doubt. Therefore, his appeal is dismissed and the conviction and sentence awarded to him (Ihsan Ullah) by the learned trial Court is upheld. Death sentence of accused Ihsan Ullah is confirmed.
21. Reference made by the learned Sessions Judge under section 374, Cr.P.C. Is accordingly accepted. Criminal Appeal No,26 of 1992 filed by Ihsan Ullah accused is dismissed. Criminal Appeal No,8 of 1992 filed by Muhammad Asif accused is accepted. Revision No,353 filed by the complainant is also dismissed as the acquitted accused were rightly given benefit of doubt by the learned trial Court under the law.