' IFTIKHAR HUSSAIN CHAUDHRY, J.--- Muhammad Iqbal Muhammad Ashiq, Liaqat Ali and Gohar Ali were tried in the Court of Javed Nawaz, Additional Sessions Judge, Okara in case F.I.R. No,123, dated 1-8-1986 under sections 302/324/34, P.P.C. Registered at Police Station Mandi Hira Singh, District Okara. The accused were acquitted by the trial Court. The judgment of acquittal is under appeal.
2. Criminal Case F.I.R. No,123 of 1986, Exh.P.C. Was registered at the instance of Muhammad Safdar, complainant, according to whom he was cultivator and was resident of Village Bhokan. About 22/23 years ago, his father Muhammad Shafi (deceased) and others murdered Hanus Dogar (father of the accused) and those accused were sentenced to rigorous imprisonment for 20 years.
They, however, were acquitted on appeal. 11/12 years prior to the occurrence, Iqbal and Ashiq accused committed murderous assault on Muhammad Shafi, deceased, and the criminal case registered was pending in the Court. On the day of occurrence, complainant alongwith his father Muhammad Shafi deceased, Muhammad Din, Atta Muhammad P.Ws. Had gone to Mandi Hira Singh in connection with resolution of a dispute in a Panchayat. After Panchayat, they boarded Bus No,LEK-3449 for their village at 2-30 p.m. When the bus reached Pull Permanand, Iqbal Ashiq, Liaqat and Gohar also boarded the bus. At about 4-00 p.m. When the bus reached Pull Sadha Singh, Iqbal armed with dagger, Ashiq, Gohar and Liaqat armed with .12 bore pistols raised Lalkara that they would avenge the murder of their father, Hanus. Gohar accused took Muhammad Shafi, deceased, in clasp. Ashiq accused fired a shot which hit the deceased at his abdomen who fell down. Liaqat, Iqbal and Ashiq accused dragged the deceased out of the bus. Iqbal accused cut throat of Muhammad Shafi, deceased, with dagger. Muhammad Din P.W. Tried to rescue the deceased but Iqbal accused inflicted dagger blow on his right hand. Liaqat accused also caused injuries with butt end of pistol to the mouth of Muhammad Din. On hue and cry of the passengers, the accused ran away while firing in the air.
3. All the four accused were found guilty during investigation and were sent up to face trial in the Court of Additional Sessions Judge, Okara where prosecution examined Mirza Nazir Baig, Patwari P.W.1, Arif Hussain Constable P.W.2, Abdur Rehman Constable P.W.3, Safdar complainant P.W.4, Dr. Malik Muhammad Afzal who conducted the post-mortem examination as P.W.5 as well as Atta Ullah P.W.6 eye-witness, Khurshid Ahmad P.W.7, Noor Ahmad, A.S.-I. P.W.8, Muhammad Yaqoob P.W.9, Sarfraz Hussain, S.-I. P.W.10.
4. The accused professed their innocence and pleaded their false implication in the case due to enmity.
5. Trial Court after conclusion of trial, disbelieved the prosecution case and acquitted all the accused from the case.
6. The State assailed the correctness of the judgment, dated 31-5-1988 passed by Additional Sessions Judge, Okara which was admitted to hearing on 23-5-1989. Learned counsel for the parties have been heard today.
7. Learned Assistant Advocate-General contended that judgment of trial Court was visibly coloured and conclusions drawn by it were patently erroneous and unnecessary concessions were given to the accused. It was submitted that the accused had strong motive to commit the offence; that Safdar and Atta Ullah eye-witnesses, fully supported the prosecution case; that incident had taken place in view of a large number of people in a bus and also on road side and in a promptly lodged F.I.R. Specified roles were ascribed to individual accused and that showed the presence of witnesses at the spot. It was submitted that non-mention by witnesses of an insignificant injury on the chest of the deceased was needlessly hyped by the trial Court and that the manner in which the occurrence had taken place firstly inside the bus and later outside the bus had hindered the view of the witnesses qua infliction of that injury and no benefit of this aspect of the matter could have been given to the accused in any manner. It was submitted that it was a brutal murder and acquittal of the accused caused grave miscarriage of justice and judgment of acquittal should be set aside. Learned counsel for the respondents on the other hand submitted that trial Court had given cogent reasoning for recording acquittal of the accused; that Safdar P.W. Was unable to give any detail of the dispute regarding which Panchayat was going to be convened, that Ata Ullah P.W.6 was resident of village Klair which was at a distance of 34 miles from Mandi Hera Singh where Panchayat was going to be held and village Klair fell in the way to village of the deceased and there was no reason for the witnesses to have gone to the village Bokan and conclusion of the trial Court that he was not present at the spot, therefore, was correct. It was submitted that ocular account and medical evidence were not in line with each other and due benefit of that was also given to the accused. It was also submitted that it was alleged by the witnesses that deceased was dragged out of the bus to a place where he was finally done to death but no marks of dragging were noticed on the dead body by the Medical Officer. It was submitted that Safdar son of deceased did not go forward to rescue his father and his conduct at the time of occurrence also showed his absence from the spot. It was submitted that in criminal cases such flaws are always significant for recording acquittal of the respondents and judgment of trial Court in this view of the matter did not call for any interference.
8. The view this Court takes of the judgment of acquittal recorded by a trial Court is usually deferential and killer approach is avoided provided the judgment is found to be a bona fide view of the record which view would have been taken by any reasonable mind or person. People have different viewpoints and divers conclusions can be drawn by different persons from the same record. Therefore, the standard to be followed in this regard is whether a reasonable person could have arrived at the conclusion which was drawn by trial Court or not? By "reasonable person" mentioned here, is not meant a layman but a person, such as a Judge or a lawyer, who is trained in carrying out critical analysis of evidentiary material and has the ability to derive right conclusions therefrom according to law of the land. We have examined the record as well as the impugned judgment on the touchstone of this standard. The impression gathered on the first glance of the impugned judgment is that the same is palpably coloured, logic employed is defective, the ratiocination is visibly strained and the Additional Sessions Judge been found to be too eager to give undue benefit of minor factors to the accused. This judgment by any measure of yardstick would not have been sustainable.
9. Hanus Dogar, father of the accused-respondent was murdered about 20/23 years back.
Muhammad Shafi, deceased, was convicted but later was acquitted on appeal. The accused had launched a murderous assault on Muhammad Shafi and criminal case was registered against them and they were facing prosecution during the days of occurrence. The accused-respondents were after the blood of Muhammad Shafi for quite sometime and prosecution was able to show that accused had a strong motive as well determination to despatch Muhammad Shafi to the other world in the manner in which their father was sent.
10. According to complainant Muhammad Din had purchased land in village Bunga Khan Singh of Police Station Mandi Heera Singh and in connection of delivery of possession of land, a Panchayat was going to be convened. The complainant, his father Muhammad Shafi, Muhammad Din and Ata Ullah P.W. Went to that village wad returned therefrom in bus No,LEK-3449. When the bus reached at Qila Sada Singh stop, lqbal armed with dagger, Ashiq armed with .12 bore pistol, Liaqat also armed with pistol rose from their seats. Gohar took Muhammad Shafi in clasp while Ashiq fired at him. Thereafter, the deceased was dragged out of the bus by the accused and Iqbal accused- respondent slaughtered Muhammad Shafi with the help of a dagger. Muhammad Din tried to rescue him when he was also injured at the hands of Iqbal. Liaqat statingly gave blow with butt- end of pistol to Muhammad Shafi. The accused decamped from the spot. The deceased was travelling in a bus and in case he was travelling alone and he was done to death by unknown assailants it was not possible for the driver, conductor or other passengers travelling in bus to have known as to who the deceased was. The occurrence had taken place at Qila Sada Singh which was located about 21 k.m. Away from police station. It was considerably away from village Bhokan and nobody could have known about death of the deceased whose head was chopped off making his identification even more difficult. Even if matter was reported to police by somebody, the criminal case would have been registered belatedly against unknown persons and that too in respect of an unclaimed dead body lying on the roadside. But in the case in hand F.I.R. Was promptly lodged.
Names of the accused were specifically given. They were assigned specific roles and witnesses were also duly named in the F.I.R. Which lent considerable credence to the prosecution case. In case the incident was unwitnessed one, it was not possible for the complainant or the witnesses to have described the incident in the manner they did before the police or later at the trial. There was no material on record which could show that the dead body was identified belatedly, or that the complainant was called by police or that the witnesses were collected from different village after preliminary investigation and then were set up as false witnesses.
11. The testimony of Safdar-complainant, was rejected by the trial Court on account of his conduct at the time of occurrence while testimony of Ata Ullah, P.W., was disbelieved by saying that his village fell on the way to village Bhokan and he could not have gone there. In this case as many as four young persons had taken part in the incident. They were armed with lethal weapons and they were determined to avenge the murder of their father. Safdar complainant, who was son of the deceased kept himself at a distance from the assailants and this was the only rational course which he could have adopted. There was nothing irrational or unusual about his conduct at the time of occurrence Ata Ullah P.W., was resident of village Klair. He had accompanied the deceased and Din Muhammad (since dead) to another village and had returned together and there was absolutely nothing unusual about his accompanying the party back to village. Bhokan. Unless it was shown that it was impossible for the witness to have accompanied Shafi or Din Muhammad or it was shown that Ata Ullah P.W. Was present at the relevant time somewhere else his testimony could not have been rejected. He was an independent witness. He had absolutely no enmity with any of the accused and no reason had been given as to why he should falsely depose against the present respondents. The presence of both eye-witnesses at the spot is proved by the ambient circumstances of the case and also by promptitude of the F.I.R. And the natural manner in which they had testified at the trial. Their presence at the spot has been found to be fully believable and view of trial Court in this regard has been found to be badly jaundiced. Muhammad Din, the injured P.W. Had died before trial and could not be examined at trial otherwise the purpose of his visit to village where he had purchased land and the nature of dispute between the parties would have been fully highlighted by that witness. The purpose of visit of the deceased and witnesses was given in the first information report and since the relevant person (Muhammad Din) had died, non- elaboration of the nature of controversy by other witnesses would not affect the prosecution case in any manner.
12. The trial Court also concluded that there was contradiction in the medical evidence and the ocular account inasmuch as one injury (No,3) on the chest of the deceased was not mentioned by the witnesses. The incident in this case had taken place firstly inside the bus. The accused had attacked the deceased and had caused injuries to him with a pistol. They were four of them and were all over the deceased in the crowded cabin of the bus and in the melee which ensued the deceased received an injury an incised wound on the lower part of the chest. Iqbal accused was armed with a dagger and infliction of such injury was quite possible. Later, Muhammad Shafi was taken out of the bus and was slaughtered like animals by the accused with the help of dagger. The dead body must have been lying in a pool of blood when his physical examination was undertaken by the Investigating Officer. While preparing inquest report, the injury on the lower part of the chest (on side of the body) possibly was overlooked due that fact. Such a lapse of observation of the witnesses is hardly a ground on which the entire prosecution case could be thrown out the window as was done by the trial Court. The contradiction in the ocular version of the incident and the medical evidence has to be glaring and only then the accused could be given benefit of that, for that essentially shows, in ultimate analysis, the non-presence of eyewitnesses at the scene of incident. The contradiction in medical evidence and ocular evidence would be considered to be glaring when the medical evidence would conclusively show that the deceased was done to death in a manner altogether different from the one claimed by the prosecution or the violence noticed on the dead body could not have resulted by weapons which were claimed to have been employed. Non-mention by witnesses of one of insignificant injuries out of many, cannot by any stretch of imagination, be considered as a contradiction in the ocular account and the medical evidence. The declaration of the trial Court in this context is an outrage on reason.
13. Learned counsel for the respondent also submitted that as far as Muhammad Iqbal was concerned he was involved in the case on the basis of Nian only and otherwise he had proved the plea of alibi in the course of investigation and Nian had no place in our criminal law.
14. The Punjabi word Nian {{URDU TEXT}} is derived from Sanskrit word Niay {{URDU TEXT}} meaning right justice, righteousness, adjudication. Niain {{{URDU TEXT}} and Niain {{URDU TEXT}} means adjudicator or adjudicators, one who decides or gives justice. Resolution of disputes or establishment of guilt or innocence of the accused through Nian dates back to medieval times when the rural communities particularly of this region namely Punjab a Frontier Province of the sub-continent, were entirely on their own for their safety and self-preservation. There was little Government in the region and the only contact of people with the authorities was the visit of Revenue-Collectors. Some adjudicatory fora existed in garrisons or places where representatives of central rulers lived but rest of the region was a commonwealth of communities which depended entirely on their own institutions for resolving their disputes, for policing and for their security. The purely indigenous concept and institution of Nian took birth in an egalitarian environment and fulfilled the needs of the people of the region for a long time. Whenever resolution of any dispute was required the matter was referred in a democratic manner to an adjudicator called Niai, with the free consent of parties. Some times more than one adjudicator, were appointed and Niain then carried out the adjudication. The Niai took oath, examined the parties under oath and also carried out enquiries needed for his assignment. The system was inquisitorial as well as adjudicatory and was way ahead of times. The examples and values associated with Nian have endured as an exceptionally powerful heritage of our people and is still regarded as the best mode of adjudication in vast regions of the Punjab. The adjudicator carries out the investigation, examines the parties and collects all other evidence which could be made available and thereafter the Niai gives the verdict. The system has always been respected by the people and verdict of the Niai is accepted without much qualm having full sanction of societal will and since the society accepts it as valid mode of determination of guilt or innocence of the accused, we consider that this tradition or this purely voluntary adjudication should be duly respected and should be given due weight in appropriate cases. Even in Islamic Law, an unwitnessed murder case is decided on the basis of Qassama a form of oath. Provisions of Chapter XII of Qanun-e-Shahadat Order, 1984 also embody principles governing adjudication on oath. Adjudication on oath, thus, has religious sanction, as well. Weight of law and procedure, and expense associated with it, has become crushingly unbearable in most modern countries and the Courts are now encouraging informal dispute- resolution without Court interference. This concept called, Alternative Dispute Resolution A.D.R., which involves, mediation, reconciliation, or arbitration is being prompted by various countries and even law and procedure have been changed to empower the Courts to force the parties to have recourse to A.D.R. The concept and institution of Nian a voluntary and free adjudication, is a far more powerful tool for dispute resolution, having full societal acceptance, and deserves proper accommodation in our justice system. The verdict or decision of Niai is given on oath after considerable inquisitorial proceedings, most of which are taken on oath, and should not be treated as mere opinion or hearsay evidence.. This, as a matter of fact, is non-conventional adjudication. It can be given due weight in adjudication by the conventional Courts.
15. In the case in hand even in the course of investigation none of the accused other than Muhammad Iqbal raised any plea of innocence. Only about Muhammad Iqbal accused claim was made by the accused that he was not present at the spot and had not taken part in the incident.
The matter was referred to Niai who gave his verdict against Muhammad Iqbal, as admitted by learned counsel for the respondents. Ashiq, Liaqat (since dead) and Gohar even in the investigation or even before Niai had not raised any plea of alibi or plea of innocence. The guilt of accused stood established even in the traditional manner of adjudication. The investigatory evidence had fully established guilt of the accused-respondents.
16. In any criminal case, the Court the trial Court or the appellate Court, is required to find that the .Evidence which includes prosecution evidence as well as defence evidence when considered with inferences deducible from record enabled it to be sure of the truth and accuracy of that evidence and in consequence, of guilt of accused. After examination of record with care we are satisfied about involvement and guilt of the accused-respondents in the commission of offence. They had butchered their enemy in front of a large number of people in an open space. The crime committed by them was horrendous. Their involvement in the case was fully established on the basis of evidence led at the trial and they could not have been acquitted as was done by the trial Court. The weight of evidence against the accused was considerable and they were acquitted in an visibly interested manner by the Additional Sessions Judge. As a consequence the appeal is allowed. Acquittal of respondents Iqbal, Ashiq and Gohar is set aside. The accused consequently are convicted under section 302, P.P.C. Liaqat accused had died during pendency of the appeal.
17. The quantum of sentence to be awarded to the accused has agitated our minds. Awarding appropriate sentence to accused in any given case, in a rational society is a difficult task. The Courts have to strike balance between demand of the complainant and also the needs of the society to curb the crime and at the same time the Courts have to ensure that only justice is done in the matter and conviction and sentence are not revenge-oriented. The accused-respondents were quite young when their father was murdered and offence was committed by them to avenge that murder which must have haunted them for a long time. Therefore, we consider that lesser sentence of imprisonment for life to each of the convicts with a fine of Rupees one lac each would be appropriate sentence in the case. The accused are sentenced accordingly. The accused were acquitted from the case about 12 years back and they have enjoyed liberty for a long period.
Sending them back to prison at this stage would not serve the societal need or interest of the complainant party. Therefore, it is directed that in case the accused paid the fine as directed above by 1-2-2001 sentence of imprisonment for life handed down to each of them shall be reduced to that already undergone and they shall be released from custody. In case, fine is not paid by the accused by 1st February, 2001, they shall serve the entire terms of imprisonment being imposed on them but in that case benefit of provisions of section 382-B, Cr.P.C. Shall be extended to them. The amount of fine in case of recovery shall be paid to the legal heirs of the deceased.