SH. MUHAMMAD ZUBAIR, J.---Asghar, Sadiq, Ashraf, Abdur Rashid, Khalid, Karam, Khushi Muhammad and Latif were tried by the learned Additional Sessions Judge, Gujrat, under section 302/307/148/149, P.P.C. For the murder of Ashiq Hussain and for murderous assault on Haji Muhammad P.W.11, Abdur Razzaq P.W.12, Mazhar Hussain P.W.9 and Ghulam Shabbir (given up witness). Their co-accused Fazal Hussain died during the pendency of trial.
The learned Trial Judge' vide his judgment dated 23-5-1990, acquitted Karam, Khushi Muhammad and Latif of the charge, but convicted Asghar, Sadiq, Ashraf, Abdur Rashid and Khalid, under section 302/307/148/149, P.P.C. And sentenced them as under:---
(a) Two years' R.I. Each under section 149, P.P.C.
(b) Seven years' R.I. Plus fine of Rs.5,000 each or in default one year's R.I. Under section 307/149, P.P.C. Half of the fine, if recovered, was ordered to be paid to the injured P.Ws.
(c) Asghar was sentenced to suffer death plus fine of Rs.10,000 or in default two years' R.I., whereas the remaining four to imprisonment for life plus fine of Rs.5,000 each or in default one year's R.I.
Under section 302/149, P.P.C. Half of the fine, if recovered was ordered to be paid to the legal heirs of the deceased.
The substantive sentences were ordered to rum concurrently.
Abdur Rashid and Khalid have filed Criminal Appeal No.378 of 1990, against their convictions and sentences, whereas Asghar, Sadiq and Ashraf have challenged the aforesaid judgment of the trial Court through Criminal Appeal No.344 of 1990. The learned trial Judge has also referred the matter to this Court under section 374, Cr.P.C. For confirmation of death sentence of Asghar appellant. We propose to dispose of all the three matters by this single judgment.
2. F'.I.R. Exh.PJ/1 was recorded on the statement Exh.PJ of Rafiq Ahmad (P.W.8), which was taken down by Muhammad Latif, S.I./S.H.O. On 14-4-1989 at 12-30 p.m. At Chowk Sadhu Jalalpur Jattan, with regard to an occurrence which took place the same day at 8-00 a.m.
3. Rafiq Ahmad (P.W. 8) stated that he is the resident of Mohallah Khizar Khanwali, Jalalpur Jattan and is employed as doctor in Veterinary Hospital. Kharian. On 14-4-1989, it was Friday and he was present in his house. At about 8-00 a.m., Muhammad Asghar appellant and Mazhar Hussain (P.W.9) who is the relative of the complainant quarrelled on account of pigeons and exchanged abuses. Mazhar Hussain P.W. Is alleged to have slapped Asghar, but the dispute was patched up due to the intervention of women folk of the Mohalleh. However, Asghar left the place saying that he would take avenge of the abuses.
The same day at about 11-30 a.m., the complainant, alongwith Ashiq Hussain deceased, Mazhar Hussain P.W.9, Ghulam Shabbir (not produced), Haji Muhammad P.W.11 and Abdur Razzaq P.W.12, was sitting in the house of Haji Muhammad P.W.1, when Asghar, Sadiq, Ashraf, armed with Chhuris, Karam, Latif and Rashid (since acquitted) Khushi Muhammad, Fazal Hussain (since dead) and Khalid armed with Sotas, in the prosecution of the common object of the unlawful assembly, appeared in the street in front of the house of Haji Muhammad P.W. Asghar appellant shouted that Mazhar Hussain should come out of the house. When the complainant alongwith his companions came out in the street, Asghar raised a Lalkara and gave a Chhuri blow to Ashiq Hussain, which hit him on the front side of the chest, who fell down. Thereafter, Abdul Rashid hit a Sota blow on the head of Ashiq Hussain, Latif gave a Sota blow on the left arm of Ashiq Hussain, Sadiq appellant caused an injury with Chhuri to Haji Muhammad on the left side of his chest, Muhammad Ashraf caused injury with Chhuri to Abdul Razzaq P.W. On his abdomen, who too fell down. Zafar gave a Sota blow on the head of Mazhar Hussain P.W., who fell down. Thereafter, Asghar caused an injury to Ghulam Shabbir on his left arm. Khalid gave a Sota blow to Abdul Razzaq P.W. On his head, who fell down. In the fallen condition, Karam, Khushi Muhammad, Latif and Khalid injured Abdul Razzaq.
Bahadur Khan is alleged to have witnessed the occurrence. The complainant and Bahadur Khan beseeched the assailants and rescued the injured. The assailants then decamped from the spot while raising Lalkares. They took the injured to Civil Hospital, Jalalpur Jattan, where Ashiq Hussain succumbed to the injuries.
4. After recording the statement Exh.PJ of Rafiq Ahmad, Muhammad Latif, S.I. Sent the same to the police station for the registration of the case and himself proceeded to Civil Hospital, Jalalpur Jattan. He prepared the injury statement Exh.PO and inquest report Exh.PP and despatched the dead body of Ashiq Hussain to the mortuary for post-mortem examination. Thereafter, he inspected the spot and collected blood-stained earth from there vide memo. Exh.PH. Thereafter, the investigation was transferred to Ch. Muhammad Ashraf, Inspector (P.W.13) who got prepared site plan Exh.PA and Exh.PA/1 by Akhtar Naqqash (P.W.1). On 24-4-1989, the appellant and the acquitted accused appeared before him and they were arrested. Muhammad Latif, S.H.O. (P.W.15), to whom the investigation was again transferred, recovered Chhuri P.4, from Sadiq, Chhuri P.5 from Asghar, Chhuri P.6 from Ashraf and Sota P.7 from Khalid accused, vide recovery memos. Exhs.PK, PL, PM and PN, respectively. On 15-4-1989, Nabi Ahmad, F.C. Produced before him the last worn clothes of the deceased, which were taken into possession vide memo. Exh.PG. Thereafter, the investigation was taken over by Abdul Hamid Kiani, D.S.P. (not produced), who found Karam Hussain, Muhammad Latif and Khushi Muhammad innocent and they were got discharged. After completing the legal formalities, the challan was submitted in the Court.
5. Dr. Khalid Mahmood (P.W.2) examined Haji Muhammad P.W. On 14-4-1989 and found a penetrating stab wound 3-1/2. c.m. x 1-1/2 c.m., with gaped and clear cut margin oblique in direction over lateral aspect of left chest in the line of the axilla.
The same doctor on the same day, examined Abdul Razzaq P.W. And found a stab penetrating wound 4 x 2 c.m. With clear cut and gaped margin oblique in direction over the left loin.
The same doctor also examined Ghulam Shabbir (not produced) and found six injuries on his person. He also examined Mazhar Hussain P.W. And found a lacerated wound over the left hair recess, an abrasion over the right leg and four swelling with multiple bruises.
6. Dr. Javaid Iqbal (P.W.3) conducted the post-mortem examination on the dead body of Ashiq Hussain on 15-4-1989 and found an incised stab wound in front of left side of chest, an incised wound on left forearm anteriorly above the left elbow, two bruises one on the right shoulder and the other on the left shoulder, an abrasion on lower part of right knee joint and a lacerated wound on top of vertex. In the opinion of the doctor injury No. l i.e. Incised stab wound with clear cut margins which were inverted, 3 x 0.5 c.m., in front of left side of chest, 9 c.m, from left nipple on inner side and 15 c.m. Below the medial end of left clavicle---was sufficient to cause death due to haemorrhage and shock in the ordinary course of nature, whereas the other injuries were simple in nature.
7. Asghar appellant in his statement under section 342, Cr.P.C., denied the prosecution allegations and explained the case against him in the following words:---- "The P.Ws. Are related inter se and are inimical towards me. The true facts are that on the eventful day at about 11 a.m. Mazhar Hussain P.W. Caught hold of two pigeons belonging to me and wanted to slaughter them with a Chhuri. I entreated Mazhar Hussain P.W. To hand over my pigeons and not to slaughter them upon this Mazhar Hussain started abusing me and also slapped me. I also retaliated by abusing him. In the meantime, Ashiq deceased, Haji Muhammad, Abdul Razzaq and Ghulam Shabbir P.Ws. Came there for the house of Haji Muhammad P.W. While armed with Sotas and Fazal Hussain accused since dead and Zafar son of Muhammad Din also came to intervene.
Zafar son of Muhammad Din was carrying a Sota while Fazal Hussain accused was empty handed- then. The abovesaid injured P.Ws. Wanted to attack Zafar son of Muhammad Din, Fazal Hussain and myself. In the meantime scuffle ensued and Fazal Hussain accused succeeded in snatching the Chhuri from Mazhar Hussain P.Ws. With which he was wanted to slaughter the pigeon and during the course of the scuffle he caused injuries to the deceased and the P.Ws. Alongwith Zafar who also caused Sota blows by wielding the same in their own self-defence and in my defence, there was also grappling. The other accused were not present at the time of occurrence and they were subsequently falsely involved in the case in connivance with the police as they are the relatives of Fazal Hussain and Zafar mentioned above. Muhammad Rafiq and Bahadur Khan P.Ws. Were not present at that time. Mazhar Hussain and the other injured P.Ws. Then ran away from the spot. Fazal Hussain accused threw away the Chhuri and Zafar had thrown the Sota at the spot. The police concocted a false story by giving a twist in order to falsify the self-defence version of myself, Fazal Hussain and Zafar mentioned above."
He further added:---- "I am innocent. Zafar son of Muhammad Din was first of all implicated in the case but was subsequently left by the complainant party after compromising with him."
Similarly Sadiq appellant denied the prosecution allegations, pleaded innocence and stated that he had been implicated in this case due to his relationship with Asghar accused. Same was the stance of Muhammad Ashraf and Khalid appellants.
Abdul Rashid appellant also denied the prosecution allegations. He pleaded innocence and stated that they had produced many respectables in order to substantiate their plea before the police, whereupon the case against Latif, Karam Hussain and Khushi Muhammad was cancelled, whereas he and Fazal (since dead) were found innocent. The appellants did not produce any evidence in defence.
8. The learned Trial Judge disbelieved the evidence of motive. He also observed that the acquitted accused did not participate in the occurrence. However, believing the prosecution evidence against the appellants, he convicted and sentenced them as stated above.
9. The learned counsel for the appellants appearing in Criminal Appeal No.344 of 1990 contended that the, F.I.R. Was recorded after preliminary investigation and also after perusal of the medical evidence, hence no sanctity is attached to this dubious document and no reliance can be placed on the medical evidence in order to appreciate ocular version. The motive though alleged still remained unproved. The presence of the witnesses at the spot by itself is not sufficient to ensure that they are the witnesses of truth. Placed reliance on PLD 1962 SC 502 and PLD 1967 SC 356.
It is a case of dishonest investigation, hence no reliance can be placed on the recovery of incriminating articles allegedly taken into possession during the investigation of the case; that the complainant threw his not very wide, as three accused persons, named in the F.I.R., namely, Karam Hussain, Khushi Muhammad and Muhammad Latif were found innocent during the investigation, hence no reliance can be placed on the ocular version unless and until it is getting ample support from the independent evidence.
It is a case of two versions, one version has been put forth by the prosecution whereas the other version has been given by the defence. The defence version is more probable and nearer to the truth and the learned Trial Judge has erred in law while disbelieving the defence version, which is otherwise getting ample support from the circumstantial evidence. Placed reliance on PLD 1991 SC
558. The occurrence took place all of a sudden hence the sentence of death imposed upon Asghar is not called for. The presence of Rafiq Ahmad complainant is not borne out from the record, hence no reliance can be placed on his evidence.
Learned counsel appearing for Abdur Rashid and Khalid appellants in Criminal Appeal No.378 of 1990, adopted the arguments of the learned counsel appearing for the appellants in Criminal Appeal No.344 of 1990, referred to above. He, however, added that no corroborative evidence either in the form of medical evidence or otherwise is available on the record to justify the conviction of Abdur Rashid and Khalid appellants.
10. The learned counsel for the State supported the impugned judgment.
11. The learned counsel for the complainant submitted that the prosecution in order to prove its case examined fifteen witnesses, out of whom Rafiq Ahmad P.W.8, Mazhar Hussain P.W.9, Haji Muhammad P.W. 11 and Abdur Razzaq P.W. 12 have supported the prosecution version and presence of the last three mentioned witnesses cannot be disputed as they bore the hallmark of their presence in the form of injuries on their persons. The version given by the defence is an afterthought and is not supported either by the direct or the circumstantial evidence, hence the learned Trial Judge rightly convicted the appellants. There is no force in the submission of the learned counsel for the appellants that the occurrence took place all of a sudden on account of dispute over pigeons which took place at 8-00 a.m. But the appellant made a concerted attack on the complainant party at 11-00 or 11-30 a.m. And in that process caused the death of Ashiq Hussain and injuries to the injured P.Ws.
The learned counsel next contended that the sentence awarded to the appellants except Asghar, needs enhancement as they are equally guilty for the act of the principal accused in view of the application of section 149, P.FC. And placed reliance on PLD 1970 SC 447, where their lordships observed:--- "If several persons combine to destroy one human life dastardly and with a deliberate design with no extenuating circumstances to mitigate the offence of any one of them, the long arm of law, according to its dictates, must reach all of them sternly and remorselessly in an equal manner. "
12. We have carefully gone through the record of the case with the able assistance of the learned counsel for the parties and have critically examined their respective submissions.
There is no force in the submission of the learned counsel the appellants that the F.I.R. Was lodged after deliberation, consultation or speculation. On the contrary, the F.I.R. Was lodged with great promptitude and without any loss of time after procuring the medico-legal reports of the injured, by the complainant whose presence is established from this document. Had he not been present at the scene of occurrence he would not have lodged the report with such promptness.
It is true that during the investigation, Karam, Khushi and Razzaq accused were found innocent but this finding of the police is not binding on the Court, as after recording the detailed evidence, the learned Trial Judge did not agree with the finding of police qua the innocence of Rashid appellant.
We find great force in the submission of the learned defence counsel that the motive though alleged was not proved by the prosecution, as except the bare statement of Mazhar Hussain P.W.9, there is no other evidence available on the record to prove the motive. No doubt, this Court is not bound by the finding of the Trial Court, being a Court of appeal, but if the finding of the Trial Court is based upon proper appreciation of evidence on the record, then this Court would not easily disturb that finding, so we hold that the prosecution has failed to prove the motive in accordance with law.
13. Admittedly, it is a case of two versions, one version has been given by the prosecution and the other version has been put forth by the defence. The salutary principle of law for the just decision of a case of two versions is that both the versions are put in juxtaposition and then the Court has to see on the basis of evidence available on the record, subject to this condition that onus to prove its case always remains on the prosecution, which version is more probable and nearer to the truth.
Applying the aforesaid principle of law to the facts of this case, we find that the prosecution version is being supported by the evidence of three eye-witnesses, naively, Mazhar Hussain P.W.9, Haji Muhammad P.W.11 and Abdur Razzaq P.W.12, who received injuries in the said transaction. No doubt, it is true that mere presence of a witness does not ensure his truthfulness but at the same time each case has to be decided on its own facts.
14. No doubt, there are certain minor discrepancies appearing here and there in the evidence of the eye-witnesses, with respect to their statements under section 161, Cr.P.C. And the evidence which they gave before the Court, but such-like minor discrepancies do occur even in the evidence of most truthful witnesses due to lapse of time and difference in the perception of different persons.
15. We now proceed to examine the defence version to see whether it is plausible and nearer to the truth on the basis of evidence adduced before the Trial Court. A careful examination of the defence version proves its falsehood, because according to the defence version put forth by Asghar appellant in his statement under section 342, Cr.P.C., a quarrel ensued between him and Mazhar Hussain P.W. Over the pigeons in the presence of the injured P.Ws. Who were variously armed.
Mazhar Hussain P.W. Was having a Chhuri in his hand, whereas Ashiq Hussain deceased, Haji Muhammad, Abdur Razzaq P.Ws. And Ghulam Shabbir (given up P.W.) reached there armed with Sotas. On the side of the defence, there were two persons, namely, Fazal Hussain who was empty-- -handed and Zafar, who was armed with a Sota. During the scuffle, Fazal Hussain (since dead) was able to snatch the chhuri from Mazhar Hussain and caused injuries to the injured P.Ws. And also to Ashiq Hussain deceased. If this defence version is seen in the context of the medical evidence, we find that none of the accused, though unarmed, received any scratch on their persons from the injured P.Ws., who were variously armed like Sotas, a formidable weapon against unarmed persons.
If Mazhar Hussain P.W. Who was having two pigeons in his hand, it was impossible for him to catch hold the Chhuri to slaughter the pigeons. Even the defence has not led any evidence to substantiate this plea by producing a witness from the neighbourhood.
No doubt, the law does not require that much proof from the defence which is placed on the shoulders of the prosecution, still in order to get acquittal, the accused has to satisfy that there is a reasonable possibility that the defence put forward by him might be true and must get some support either from the direct or from the circumstantial evidence. In the present case, unfortunately, the defence plea is not getting any support either from the direct or the circumstantial evidence or from the statements of the appellants which they made to the police after their arrest. The defence failed to explain how it was possible for an old man like Fazal Hussain to cause so many injuries on the persons of injured P.Ws. Who were stout young personnel and were armed with Sotas and Chhuri. This leads to one inference only that the defence version is improbable, fantastic and afterthought; hence the Trial Judge rightly disbelieved this version. 'Had the defence plea been true, then obviously some person from the Mohallah would have supported it. The recovery of blood-stained Chhuris at the instance of Asghar, Sadiq and Ashraf appellants further strengthen the prosecution version.
It is true that it is case of dishonest investigation, as the I.O. Deliberately wanted to spoil the prosecution case. He did not send the Chhuris, though blood-stained, recovered from Sadiq and Ashraf to the Chemical Examiner/Serologist, but Chhuri P.5 recovered from Asghar appellant was sent to the Chemical Examiner who sent the scrappings to the Serologist and the Serologist vide his report Exh.PX/1 opined that the said item was stained with human blood.
The contention of the learned counsel for the appellants that the recovery witnesses are not independent and blood could not be discovered after the lapse of three months approximately is devoid of force, there is nothing on the record to show that the recovery witnesses had any animus against the appellants; hence the learned Trial Judge rightly believed the recovery.
There is nothing on the record to substantiate that blood had disintegrated after the lapse of time.
The learned Judge also rightly observed that no application was given to the Court to cross- examine the Serologist on the point that blood would have disintegrated after the lapse of time.
Anyhow, even if the presence of these witnesses are admitted still there is no corroboration qua the role played by Khalid appellant. Even this fact has been conceded by the learned counsel for the complainant hence we accepted Criminal Appeal No.37g of 1990, qua Khalid appellant and acquit him of the charges. He is on bail and is discharged from his bail bond.
16. Now it brings us to consider the point whether the sentence imposed upon Asghar appellant be confirmed or not. We have already observed above that the prosecution has failed to prove the motive; hence possibility is there that both the parties might have not come to the Court with clean hands and might have withheld the immediate cause of occurrence. In the circumstances; we do not find any justification to confirm the death sentence imposed upon Asghar appellant and commute the same to imprisonment for life. The sentence of fine is maintained with all consequences.
17. In view of the acquittal of Khalid appellant, the conviction of the appellants in Criminal Appeal No.344 of 1990 and that of Abdul Rashid appellant in Criminal Appeal No.378 of 1990, under section 148, P.P.C., is set aside and so their sentence. The conviction and sentences of the said appellants under section 307, P.P.C. Are maintained.
18. The upshot of the above discussion is that Criminal Appeal No.344 of 1990 is dismissed with the above modification in the sentence of Asghar appellant and so Criminal Appeal No.378 of 1990, so far as Abdul Rashid appellant is concerned. The four appellants shall be deemed to have been convicted under section 302/307/34, P.P.C. The substantive sentences under sections 302/34 and 307/34, P.P.C. Shall run concurrently. The appellants shall be entitled to the benefit of section 382-B, Cr.P.C. Ashraf and Sadiq appellants are on bail. They should surrender to their bail bonds and be lodged in jail to serve out the unexpired portion of their sentence. Both the appeals and the reference are disposed of accordingly.