ZAFAR PASHA CHAUDHRY, J.--Criminal Appeal No,70 of 1991, Criminal Appeal No,195 of 1991 and Criminal Revision No,74 of 1991 have been taken up together to be disposed of by this common judgment as they arise out of one and the same judgment dated 15-4-1991 passed by Ch. Muhammad Hussain Maiken, Additional Sessions Judge, Jhelum.
2. Criminal Appeal No,70 of 1991 has been filed by Muhammad, Banaras, Sher Jang and Muhammad Ashraf against their conviction under section 302/34, P.P.C. And sentence to undergo imprisonment for life each with a fine of Rs,20,000 each and in default to undergo 2 years' S.I. Each.
Criminal Revision No,74 of 1991 has been moved by Muhammad Khan complainant against the said appellants praying that the sentence awarded to them be enhanced. The revision petition was admitted on 20-4-1993 and notice was issued to the appellants. Two of the co-accused, namely, Muhammad Hanif and Aurangzeb who had been sent up for trial along with the said appellants were since acquitted, Criminal Appeal No,195 of 1991 was filed by the State which too was admitted and notice was issued to the aforesaid acquitted respondents. As notice had been issued in revision, all the three matters have been fixed before this Bench.
3. The prosecution case, in brief, as revealed from the statement made by Muhammad Khan complainant P.W.9 is that on 27-6-1990 at 11-00 p.m., he along with his brother Muhammad Ashraf deceased was going towards their fields where melon crop had been grown. Muhammad Ashraf had his .7 mm licensed rifle. They had just covered 200 yards, Muhammad Khan sat in the way to make water whereas Muhammad Ashraf was 20/25 yards ahead of him. Muhammad Hanif armed with hatchet, Aurangzeb armed with Soti, Muhammad Banaras armed with .12 bore gun, Muhammad Ashraf son of Bagh Ali armed with Soti who were present on the road suddenly got up.
Muhammad Banaras fired a shot hitting Muhammad Ashraf deceased on his right arm who fell down where after Muhammad Hanif gave a hatchet blow on the back of his head, Aurangzeb inflicted a Soti blow on his head and Sher Jang also caused a Soti blow on the right arm. Thereafter, all the accused started belabouring Muhammad Ashraf. On alarm, Muhammad Aslam P.W.10 was also attracted to the spot. The complainant and his companions had identified the accused in the light of torches. A number of men and women on hearing the alarm also reached the place of occurrence. The accused persons while fleeing away from the site took away licensed rifle of Muhammad Ashraf deceased.
4. The motive was stated to be that accused party earlier planned to kill Muhammad Ashraf deceased by trampling him down by the tractor: A case was registered and the trial was pending in the Court. On the said statement Exh.PM made to Matloob Hussain, S.I. (P.W.13), a formal F.I.R.
Exh.PM/1 was recorded with Police Station Sohawa, District Jhelum on 28-6-1990 at 2-45 a.m. By Ishtiaq Ahmad, S.I./S.H.O.
5. After recording the statement, Matloob Hussain, Investigating Officer, proceeded to place of occurrence. He performed usual investigation and took into possession blood-stained earth and despatched dead body for post-mortem examination and after the same took into possession his last-worn clothes. He made query regarding the condition of the injured Muhammad Ashraf but it was reported by the doctor that he was not fit to make a statement. During the course of investigation, he got recovered Soti P.5 at the instance of Sher Jong secured through memo. Exh.PJ, Soti P.6 at the instance of Ashraf accused taken into possession vide memo. Exh.PK, a gun P.4 was got recovered by Muhammad Banaras which was secured vide memo. Exh.PH. All these recoveries were effected on 16-7-1990. On 17-7-1990 Sher Jang led to the recovery of Rifle P.7 belonging to the deceased Muhammad Ashraf which was taken into possession vide memo. Exh.PL along with three rounds loaded in its magazine (Exh.P.8/1-3). The licence of the Rifle of the deceased was taken into possession on 16-9-1990 from Muhammad Khan complainant. On completion of the investigation, he challaned all the accused persons who were sent up for trial in the Court of Ch. Muhammad Hussain Maiken, Additional Sessions Judge, Jhelum.
6. The prosecution in order to prove its case examined 13 witnesses. Dr. Muhammad Imtiaz P.W.12 medically examined. Muhammad Ashraf deceased aged about 61 years at 1-20 a.m. On 28-6-1990 who had been brought ''by Police Constable Wajid Hussain. He found the following injuries:--
(1) 3.5" x 3.5" swelling with reddish black discoloration with 1 x 1/2 central abrasion on whole of right side of forehead.
(2) 1" x 1/2" x 1/2" lacerated wound on left side of scalp about 3" away from midline on anterial aspect about 1-1/2" behind the margins of forehead.
1/2" x 1/2" deep incised wound on posterior side of scalp with fresh bleeding about 1-1/2" away from midline and right side of scalp. There was visible swelling and disfiguration of middle of right fore-arm and at the level of wrist- joint.
1" x 1" x 1/2" deep lacerated wound with irregular and gap margins torn in irregular angles unevenly divided deeper tissues. Mud was present in the wound. External haemorrhage was very slight. No corresponding cuts were present on Kamiz. Skin around was ecchymosed. Wound was situated in the middle and outer aspect of right forearm. There was no burning, blackening and tattooing on the wound.
2" x 2" swelling on the infro-medial aspect of right forearm in middle with reddish blackish colour.
1" x 1" abrasion in the middle and lateral aspect of right fore-arm. 1" x 1" abrasion with bruise reddish colour on medial aspect of right forearm about 1" above the middle.
(6) 1/2" abrasion on front and middle of left leg with in act movements.
(7) 1/2" x 1/2" x 1/2" circular lacerated wound with inverted edges with slight blacking all around the wounds. Corresponding hole on arm of Kamiz was present which was encircled, signed and handed over to the police. Hole of Kamiz was not burnt or blackened. No smell of gun powder was present on Kamiz or wound. There was no opposite wound on right forearm of the patient. The deceased unfortunately could not survive and succumbed to the injuries on 29-6-1990. Dr. Muhammad Shabbir P.W.11 conducted his post-mortem examination and observed the following injuries on his person:--
(1) A contused swelling 3.5" x 3.5" with central 1" x 1/2" on whole of right side of forehead.
(2) A stitched wound after removal of stitching lacerated wound 1" x 1/2" on left side of the scalp, about 3" away from middline on anterior aspect about 1-1/2" behind the margin of forehead.
(3) A stitched wound after removing stitches, lacerated wound 1/2" x 1/2" on right posterior side of skull.
(4) Clinical fracture of right forearm at distal part on its redioul-side.
(5) Stitched after removing the stitches, 1" x 1" lacerated wound on dorsal side of right forearm near elbow-joint.
(6) 2" x 2" contused swelling on interior medial aspect of right forearm in its middle point.
(7) 1" x 1" abrasion in middle and lateral aspect of right forearm.
(8) Abrasion 1" x 1" on the medial aspect of forearm 1" above the middle.
(9) Abrasion 1/2" x 1/2" on front and middle of left leg.
(10) Lacerated wound 1/2" x 1/2" stitched wound, with no blackening on front tolateral aspect of right forearm at its middle part. No foreign body could be detected even on X-ray of right forearm, right arm, chest, right lateral view, survical spine and skull. It was observed that all the injuries were ante-mortem and had been caused with blunt weapon and . Were sufficient to cause death in the ordinary course of nature.
7. Amongst other witnesses P.W.1 Muhammad Hand Patwari, P.W.2 Wajid Hussain, P.W.3 Muhammad Arshad, P.W.4 Muhammad Ilyas, P.W.5 Ghulam Safdar, P.W.6 Akhtar Hussain and P.W.7 Abdul Ghani are all formal witnesses. P.W.8 Fazal Karim is a witness of recovery of Rifle P.7 and three cartridges from its magazine P.O./1-3. He is also witness of recovery of gun P.4 and Sotis P.6 and P.7. It appears that inadvertently P.7 has been marked to the rifle as well as Soti. The recoveries of the weapons are inconsequential because no empty could be secured, therefore, the Rifle could not be sent to the Laboratory for getting it matched with empty. Similarly, the Sotis are of also no help to the prosecution because neither of them are blood-stained. P.W.9 Muhammad Khan complainant and P.W.10 Muhammad Aslam furnished eye-witness account of the occurrence. Muhammad Khan is brother of the deceased Muhammad Ashraf whereas Muhammad Aslam P.W.10 is his brother-in- law (husband of sister of the deceased). P.W.13 Matloob Hussain is an Investigating Officer who performed various functions during the investigation and the same had been noted above.
8. The learned counsel for the accused-appellants has raised the main contention that neither of the eye-witnesses have witnessed the occurrence, both of them are chance witnesses and closely related to the deceased; that they admitted their enmity with the accused persons; that the statements made by the eye-witnesses are materially contradicted by the medical report and as such loose their credence; and that there is no supporting evidence in the form of motive or circumstances either. He, therefore, prays that the prosecution has not been able to discharge its onus and the accused-appellants are entitled to be acquitted.
9. As against that, the learned counsel for the complainant has argued that mere relationship of P.Ws.9 and 10 with the deceased is no ground to discard their testimony, they have made statements in support of the prosecution version and are consistent to each other; that their statements are supported by the recovery in the sense that the recoveries were effected which lend corroboration to their version; and that the matter was promptly reported to the Police. He, therefore, submits that the prosecution has proved their guilt and their conviction as such should be maintained. However, it is added that there is no mitigating circumstance available, therefore, they should be awarded the normal penalty of death.
10. The learned counsel appearing for the State who is also counsel in Criminal Appeal No,195/91 submits that according to the prosecution, all the accused persons inflicted injuries on the person of the deceased. Mere fact that the .Acquitted co-accused were not specified any specific injury does not mean that they were not sharing the common intention with their co-accused. Although he did not very seriously press the same yet he supported the judgment and prayed that the conviction and sentence be maintained.
11. We have considered respective contentions raised by the learned counsel for the parties. The place of occurrence which is located within the revenue estate of Sogial is at the distance of 200 yards from the village. The venue of occurrence had not even been disputed by the defence. The occurrence admittedly took place in the dark of the night. However, according to the prosecution the accused persons were identified in the light of the torches they were carrying with them. The learned counsel had disputed even the story of carrying torches as according to him the same were recovered after number of days of occurrence, therefore, this part of the story is not believable. The learned counsel, however, lost sight of the fact that the presence of torches with the witnesses has been mentioned even in the F.I.R. Which was the first statement made to the Police.
Accordingly both the witnesses, Muhammad Hanif was armed with a hatchet whereas Aurangzeb and Muhammad Ashraf accused were carrying Sotis. Muhammad. Banaras is alleged to be armed with a .12 bore gun. Muhammad Hanif inflicted a hatchet blow at the back of the head of the deceased. Similarly, Muhammad Banaras fired a shot which hit the deceased at his right arm.
According to medical evidence furnished by Dr. Muhammad Imtiaz who was the first to conduct the medical examination of the deceased and observed that injury No,5 was a wound of 1" x 1" x 1/2" deep and lacerated. Mud was present in the wound. There was slight haemorrhage as well and skin around the wound was ecchymosed. There was no burning, blackening or tattooing on the wound. This injury when examined in detail by Dr. Muhammad Shabbir (P.W.11) observed that no foreign body was detected even on X-ray of the right forearm and by taking into consideration the features of the injury opined that the same had been caused with the blunt weapon. Similarly, the injury attributed to Muhammad Hanif accused at the back of the head of the deceased with a hatchet was observed by Dr. Muhammad Imtiaz as an incised wound on posterior side of scalp but the same was also verified to be a blunt weapon injury by Dr. Muhammad Shabbir during autopsy.
It appears that the injury looked like an incised wound because when an injury is caused with a blunt weapon on the part of the body where there is bone underneath the skin, it gets separated and the wound looks like an incised one because no laceration takes place on account of the hard bone beneath the seat of injury. After examining carefully the supporting data given by both the doctors regarding the nature of injury, we do not have any doubt in our minds that both the injuries have been caused with a blunt weapon. The injury which looked like one caused with a fire-arm was not found to have been caused with a fire-arm because no foreign body could be detected even on X-tay. There is no corresponding exit wound from where the projectile or the pellets as the case may would have found its way or exit from the body. The doctor i,e, P.W.11 was misled by the appearance of the injury which on the first glance looked like a incised wound. Misjudging of the injury by the doctor cannot be blamed because at the time of examination the deceased who was then injured was in a precarious condition and the doctor was not in a position to make an elaborate probe to determine its nature. -However, at the time of post-mortem examination, the exploration could be made .With the dead body and on exploration which was made after obtaining X-ray Report it transpired that the injury had not been caused with any fire-arm but with the blunt weapon. The contention of the learned counsel for the accused-appellants that the ocular account is not supported by the medical evidence is not without substance.
12. It is not a case where there is mere discrepancy in-between the ocular account and the medical evidence but suggests something more than mere discrepancy. It' appears that the injured was removed to the hospital soon after he was be laboured and there the doctor who examined him had described the nature of various injuries. Eye-witnesses made their statements in line with the opinion expressed by the doctor and finding that one injury appeared to have been caused with a fire-arm attributed to Muhammad Banaras and similarly seeing an incised wound on the head, assigned a hatchet blow to Muhammad Hanif. After the injured Muhammad Ashraf unfortunately expired and succumbed to the injuries, post-mortem report was prepared and it was found that all the injuries had been caused by blunt weapons.. It is therefore, not a case only where contradiction in-between the ocular account and the medical evidence exists but also leads us to think that the witnesses have not seen the occurrence and came to the place of occurrence after injuries had been caused to Muhammad Ashraf deceased. The learned counsel for the complainant although argued that an injury with hatchet can be inflicted from its blunt side and the nature of injury would be that of a blunt weapon. The argument may have weight but we cannot remain oblivious of the statements made by both the eye-witnesses that injury has been stated to have been caused with a hatchet which is a sharp-edged weapon, it would normally cause an incised wound and if the wound turns out to be a lacerated wound then the presumption would be that the same had not been caused with a hatchet unless the same is unequovocally explained or stated by the witnesses to have been caused from blunt side. Even otherwise, if an enemy is armed with hatchet and he has intention to cause death then he would prefer to cause an injury from the sharp edge and not from the blunt side. As noted above, the witnesses were misled by the impression created from the appearance of the wounds. The eye-witness account therefore, is belied by the medical evidence which is difficult to believe that they really witnessed the occurrence. Apart from the aforesaid factor, there are other material circumstances which cannot be ignored. For example, the occurrence took place at night and normally the villagers do not carry torches with them. The factum, as it has come on the record that deceased had previously been assaulted as well, as a result of which both of his legs were fractured. A man who cannot even walk without a support, normally, is not supposed to guard the field and that, too, at night. The witnesses who were close relatives of the deceased had admitted that they were inimical towards the accused persons, therefore, the rule of caution requires that credible corroboration should be sought for in order to rely upon their testimony. Not only the same is not available, the prosecution version, if examined critically, does not appear to be reasonable or convincing. There are six injuries on the person while the seventh is only an abrasion. It looks rather strange that the five accused persons by joining together mounted an attack on them with hatchet, fire-arm and Sotis but would cause one injury each. We feel that the prosecution has not come forward with a truth. They have definitely tried to widen the net and came forward with an exaggerated version. Even if it is believed that murderers may be amongst the accused persons, it becomes almost impossible to pick up the real culprit.
The learned trial Judge acquitted two of the co-accused as no specific injury had been assigned to them. The reason does not appear to be sound because the prosecution had alleged that all the accused caused injuries with their respective weapons. Mere fact that no specific injury is assigned to an accused, by itself is no ground to exonerate that accused or to separate his case from others.
In a case like this where palpably innocent person are mixed along with the guilty, no explicit reliance can be placed on their testimony. The rule that falsus in uno falsus in omni bus has been held to be not of universal application but the Hon'ble Supreme Court in Tawab's case PLD 1970 SC 13 did not depart from the principle laid down by Lord Tucker in 1959. It has been observed that in a case, the Court arrives at a conclusion that some accused persons amongst the various accused named by the P.Ws. Did commit the crime, they may be convicted irrespective of the fact that the P.Ws. Have been disbelieved qua their co-accused. This rule stands enforced and is being followed so that justice may be administered and guilty persons may not escape punishment as far as possible. However, where in a case it becomes difficult to pick up or to ascertain the real culprit amongst the number of accused then there is no escape from the principle that benefit of doubt has to be extended to all the accused persons. Despite our best efforts, after analysing and critically appraising the evidence, we cannot come to a definite conclusion as to which of the accused persons is really guilty, especially when we have cogent reasons to support the plea of the accused-appellants that the eye-witnesses might not have witnessed the occurrence and made statements on mere suspicion or conjectures. Both the eye-witnesses have failed to stand by the test of judicial scrutiny.
13. As referred to above as well, the eye-witness account is not supported by any circumstantial evidence because the recoveries of weapons are inconsequential. The medical evidence is not in line with the eye-witness account, and even the motive as alleged by the prosecution does not lend any support. According to the prosecution, the accused party had previously as well, attacked the deceased by hitting him with the tractor and thereafter, trampled him underneath which resulted in fracture of both of his legs. This incident, at the best, can be a reason for enmity between the parties but that does not provide a grievance to the accused person to commit murder. The motive is, in fact, a possible grievance carried by an accused person against his victim, If the deceased was assaulted previously then this incident would have created a grievance in the mind of the deceased against the assailants but no otherwise. As to why the deceased was consistently subjected to attack or assault, nothing has come on the record, therefore, the prosecution story is not supported by the motive either.
14. As a result of above discussion, we find that the prosecution has not been able to discharge its onus to prove the guilt of the accused beyond doubt. We, therefore, accept their Appeal No,70 of 1991 and set aside their conviction and sentence. They will be released from jail forthwith if not required in any other case.
15. For the various reasons recorded above, Criminal Appeal No,195 of 1991 as well as Criminal Revision No,74 of 1991 fail and are dismissed.