M. NAEEMULLAH KHAN SHERWANI, J.-- The way in which, this appeal arises is this, Iqrar Hussain Shah, Riaz Hussain Shah, Sajjad Hussain sons of Iqbal Shah, Mehdi Shah, Chan Pir Shah sons of Muhammad Shah, Nazar Hussain Shah son of Syed Jalai Shah son of Abbas Shah were tried by a learned Additional Sessions judge, at Jhang for the murder of Mst. Bakhan Bibi and murderous assault upon Muhammad Naris and. Zawar Shah. By virtue of his judgment dated 18.12.1997, the said learned judge found them guilty of the said charges, convicted and sentenced them as under:- Under Section 148, PPC: All the accused to undergo Rigorous Imprisonment for two years each.
Under Section 302/149, PPC: Riaz Hussain Shah and Sajjad Hussain Shah to death each as Tazir Iqrar Hussain Shah, Mehdi Shah, Mazhar Hussain Shah, Chan Pir Shah, Abbas Shah and Ghazanfar Shah to undergo imprisonment for life each.
Under Section 324/149, PPC: All the accused to undergo Rigorous Imprisonment for ten years each and a i.e of Rs.5000/- each on two counts or in default whereof to further undergo rigorous imprisonment for two years each.
All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C, was also extended to them.
2. Murder Reference No. 35 of 1998 seeks confirmation of said sentence of death awarded to Riaz Hussain Shah and Sajjad Hussain Shah convicts, whereas they along with iqrar Hussain Shah, Mehdi Shah, Mazhar. Hussain Shah, Chan Pir Shah, Abbas Shah and Ghazanfar Hussain Shah by filing Criminal Appeal No. 822 of 1997 have approached this Court to call in question convictions and sentences passed against them by the said learned Judge. Both these matters are being disposed of together through this single judgment.
3. Occurrence of the alleged incident took place on 5.2.1996 at 8,30 a.m. Within the area of Basti Sayedanwali, situate at a distance of two kilometers from Police Station City, ]hang. The said occurrence was reported by Iqrar Hussain Shah convict on the same day at 12.30 p.m. To Muhammad Ashraf, SI (PW-7) at Adda Tonga Jhang City. The said police official recorded his statement and despatched the same to the Police Station through some constable for formal registration of a case. Consequent upon receipt thereof Javed Khizer, MHC (not produced) drew- up F.I.R. No. 27 at 12:40 p.m. On the same day, without any addition or substraction on his part.
4. During investigation of the afore-mentioned case Zawwar Hussain Shah (PW-2) made a statement (Ex.PD/1-2) under Section 161, Cr.P.C, before Muhammad Ashraf, S.I. (PW.7) when he was available at Ayub Chowk Jhang Sadar on 6.2.1996 at 12.45 p.m. Muhammad Ashraf, S.I. Treated this statement (Ex.PD/1'2) as cross-version.
5. On the basis of this cross-version, Muhammad Ashraf, S.I. (PW.7) started investigation of the case. He went to the hospital, inspected the dead-body, prepared injury statement, inquest report (Ex.PK/3) and despatched the dead- body to the mortuary under the escort of Muhammad Iqbal constable for autopsy purposes. He also recorded statement of Muhammad Naris (PW.3), in the hospital. He then went to the spot, carried out spot inspection, prepared rough site plan (Ex.PM) of the place of occurrence. He collected bloodstained soil, made the same into a sealed parcel and prepared seizure memo. (Ex.PN). He got prepared site plan (PL) from Mapal Khan Patwari (PW.6).
On 26.2.1996 he produced both the parties before Sultan Azani Temuri, ASP (PW.8).
6. Sultan Azam Temuri (PW-8) also investigated the case. He did not agree with the version of FIR, taken by the accused party. He also deleted the offences mentioned in the FIR. On 21.3.1996 he rejected the version of iqrar Shah made in FIR No. 27, dated 5.2.1996 and directed the Investigating Officer to proceed with the investigation, complete the same and submit the challan. However, he found Ghazanfar Shah, Chan Pir and Ghulam Abbas to be not involved in the occurrence.
7. On 23.4.1996 Muhammad Ashraf, SI (PW.7) arrested Iqrar Shah, Mazhar Shah, Sajjad Shah, Riaz Shah and Mehdi Shah. At the time of their arrest Iqrar Shah, Mazhar Shah, Sajjad Shah and Riaz Hussain Shah produced to as (P. 1, P.2, P.3 and P.4) respectively, which were taken into possession by him vide memo. (Ex.PF, PG, PH and PJ) respectively, duly attested by Altaf Hussain (not produced) and Muhammad Naris (PW-3). He examined all the relevant witnesses under Section 161, Cr.P.C. During investigation police did not arrest Chan Pir Shah, Abbas Shah and Ghazanfar Shah.
After completion of investigation, report under Section 173, Cr.P.C, was prepared in which names of the afore-mentioned three persons were not mentioned as accused. This report was prepared by the police on 9.5.1996.
8. Feeling aggrieved of the investigation of police, Zawar Hussain Shah (PW.2) filed a private complaint in the Court of learned Ilaqa Magistrate on 25.4.1996 alleging therein that he along with his brother Muhammad Naris Shah and mother Mst. Bakhan was residing in Basti Syedan Wali, Jhang City. About six months prior to the occurrence a theft took place in their house for which Mazhar Abbas, etc. Were booked in Police Station hand City. Mazhar was arrested in that case and during investigation he got recovered the stolen property. That case is pending adjudication in the Court of learned ilaqa Magistrate at ]hang. Mazhar Abbas tried for compromise and forbade the complainant to pursue the case. He did not accede to his demand Mazhar and his relatives extended threats of life to the complainant. Due to this reason complainant asked Mazhar and his relatives not to come near his house. On 4.2.1996 Mazhar Abbas Shah along with Iqrar Shah and Riaz Hussain Shah was standing near house of the complainant. Mother of complainant forbade them to stand near their house, which resulted into exchange of abuses between his mother and the accused, ln the meantime on hearing noise complainant and his brother were attracted to the spot and disgraced the accused. People timely intervened and separated them. Mazhar etc. Levanted from the spot while hurling threats to the complainant side.
On 5.2.1996 at about $/9 a.m. Complainant along with his mother and brother Muhammad Naris was available in his house. His mother and brother Muhammad Naris went out of the house for a piece of work. On hearing commotion, complainant armed with his licensed gun came out of the house and saw that Chan Pir Shah armed with a hatchet, Sajjad Shah, Riaz Hussain Shah, Mehdi Shah, Iqrar Hussain Shah, Ghazanfar Shah, Ghulam Abbas Shah and Mazhar Abbas Shah armed with to as were available there, in the very view of complainant, Riaz Sajjad Hussain and Iqrar Shah accused gave sot? Blows landing on left side of head, back side of head and forehead of his mother respectively. Abbas Shah accused inflicted sota blow hitting left side of head of Muhammad Naris whereas hatchet blow given by Chan Pir Shah produced a wound on palm of Muhammad Naris. Then Mehdi Shah inflicted a sota blow landing on back side of head of his mother as a result of which she fell prone. Sota blow given by Ghazanfar Shah hit head of complainant. In order to save his life and that of his mother and brother, complainant aimed his gun at the accused. Mazhar Abbas Shah, Riaz Hussain Shah and Sajjad Hussain Shah accused grappled with the complainant to snatch gun from him. In the meanwhile the gun went OF. During this pandemonium a butt blow hit Riaz Hussain. Complainant also fell prone. Mazhar Abbas Shah and Sajjad Shah snatched gun from him. Mazhar Abbas inflicted two butt blows landing on his left arm and right shoulder. Sajjad Shah inflicted sota blow landing on his right arm near shoulder.
Other accused also gave sota blows to his mother and brother. On hearing commotion, Syed Lai Shah and Anwaar Hussain Shah were attracted to the spot and witnessed the occurrence. They beseeched the accused and rescued them from clutches of the accused. All the accused decamped from the spot. Complainant took his mother and brother to District Headquarters Hospital, Jhang where all the three were medically examined by the Doctor. His mother was admitted in the hospital due to her precarious condition. She succumbed to her injuries on the next day at about 9/10 a.m. Complainant remained busy for the treatment of his brother and mother, so he could not lodge the FIR on the same day. Police investigated the case and declared Chan Pir Shah, Abbas Shah and Ghazanfar Shah innocent. Police even did not arrest them.
9. The learned llaqa Magistrate sent the complaint to learned Sessions Judge, Jhang under Section 190(3), Cr.P.C, for 7.5.1996. On 7.5.1996 the learned Sessions Judge entrusted the complaint to a learned Additional Sessions Judge and directed the compiamant. To appear before the said Court on the same day i.e. 7.5.1996. On 14.5.1996 learned Additional Sessions judge entrusted the complaint to a learned Judicial Magistrate section 30 for an inquiry under Section 202, Cr.P.C. After recording preliminary evidence on 9.6.1996, the learned Judicial Magistrate submitted his inquiry report to the learned Additional Sessions Judge on 11.6.1996. The said learned Judge summoned all the respondents as accused on 16.6.1996. On 5.10.1996 challan case was also put up before the learned Additional Sessions Judge, Jhang. The proceedings were initiated in the complaint case.
10. The learned Trial Judge took cognizance of the case on receipt thereof. After observing all the legal formalities, charge against the accused was framed and put to them. They emphatically denied correctness of the allegations and claimed to be tried. Prosecution was forthwith directed to produce evidence of its choice to bring home guilt to the accused. Prosecution ventured to produce as many as twelve witnessed in all. Out of the whole It, evidence of Dr. Faruq Ahmad (PW.1), Dr. Atiq-ur-Rehman (PW.5), Zawar Hussain Shah (PW.2) and Muhammad Naris (PW.3) is of great significance whereas that of rest of the witnesses is of formal nature.
On 5.2.1996 Dr. Faruq Ahmad (PW.1) medically examined Mst. Bakhan and found i.e injuries on her person. He prepared medico-legal report (Ex.PA) and pictorial diagram (Ex.PA/1). On the same day he medically examined Muhammad Naris and found seven injuries on his person. He prepared medico-legal report (Ex.PB) and pictorial diagram (Ex.PB/1). On that very day he also medically examined Zawar Hussain and found seven injuries on his person. He prepared medico-legal report (Ex.PC) and pictorial diagram (Ex.PC/1).
Dr. Faruq Ahmad also medically examined Riaz Husain accused and found two injuries on his person. On the same day he medically examined Sajjad Hussain accused and found three injuries on his person. Ex.D.A. And DB are the relevant medico-legal reports.
Dr. Atiq-ur-Rehman (PW.5) conducted autopsy on the dead-body of Mst. Bakhsh Bibi and found i.e injuries on her person. According to him death occurred due to injuries Nos. 1 to 5 haemorrhage and shock. These injuries were sufficient to cause death in the ordinary course of nature. He prepared post-mortem report (Ex.PK) and pictorial diagram (Ex.PK/1 and PK/2).
Muhammad Naris (PW.3) testified to the factum of recoveries. Zawar Hussain Shah (PW.2) and Muhammad Naris (PW.3) appeared as eye-witnesses of the occurrence. They in a nutshell reiterated story of the complaint. They fully supported the prosecution case.
11. learned counsel for the complainant and complainant after tendering in evidence reports of Chemical Examiner (Exh.PQ) declared the prosecution case close except the report of Serologist.
12. Trial had now shifted to the next crucial stage, which pertained to examination of accused under Section 342, Cr.P.C. All the incriminating evidence was brought to their notice to enable them to offer handsome explanation with regard to the crime imputed to them. They proclaimed their absolute innocence in the matter and alleged their false involvement in the case. They opted not to make statements on oath in disproof of accusation brought against them as envisaged by the relevant provisions of Section 340(2), Cr.P.C. They produced no evidence in defence.
13. learned counsel for both the sides addressed their arguments, which were duly considered by the learned Trial Judge. He delivered Verdict of guilty against the appellants and punished them as afore-mentioned.
14. learned counsel for the appellants while canvassing acquittal in favour of the appellants submits that eye-witnesses are not only related inter se but are also inimical towards the accused, that there was considerable delay of twenty-seven hours in reporting the matter to the police without any reasonable or plausible explanation behind it; that FIR is the result of mutual deliberations and consultations; that motive is not only unnatural but also unbelievable and is also not proved; that the prosecution has not come out with true version of the occurrence and has implicated a bulk of innocent persons who are closely related to each other. Furthermore prosecution witnesses have suppressed their own role in the incident and have failed to explain about injuries on the accused side. The witnesses effected too many deliberate improvements in their statements and had furnished an exaggerated account of the occurrence. In addition to this ocular account is in conflict with the medical evidence; that Chan Pir Shah, Ghulam Abbas Shah and Ghazanfar Shah were found innocent by the police during course of investigation; that recoveries, if any, are inconsequential; that prosecution has miserably failed to prove its case beyond any reasonable doubt against the appellants and as such they deserve to be acquitted of the charge.
15. On the contrary, learned counsel for the State assisted by learned counsel for the complainant submits that the delay in this case is unmaterial because mother of the complainant was in most precarious condition struggling for her life; that as both the sides are fully known to each other so benefit of delay cannot be claimed by the accused, that occurrence took place right in front of house of complainant side and it was the accused side who came down to the place of occurrence and launched a murderous assault in consequence of which Mst. Bakhan met her death and two others namely Naris Shah and Zawar Hussain Shah received injuries, that the presence of injured eye-witnesses cannot be doubted, that they furnished full account of the occurrence and there is nothing to discard their testimony. They are truthful witnesses and in presence of their direct evidence no corroboration from any independent quarter is required; that it was not incumbent upon the prosecution to explain four injuries on the accused side; that there was definite motive with the accused and they launched a pre-concerted and premeditated attack in a brutal manner; that both the injured eye-witnesses had fully supported motive part of the occurrence which took place a day earlier to the incident.
16. Learned counsel for the complainant submits that case of Chan Pir Shah, Ghulam Abbas, Ghazanfar Abbas, Iqrar Shah and Mehdi Shah is somewhat weak and doubtful. As regards others it is proved beyond any shadow of doubt.
17. In the instant case we have consciously heard and soberly considered contentions raised by learned counsel for both the sides and have gone through the relevant pieces of evidence through their able assistance. After making deep survey of facts and circumstances revolving around this episode in which Bakhsh Bibi was brutally killed and her two sons namely Zawar Hussain Shah and Naris Hussain Shah were seriously wounded at the hands of the appellants, we find that occurrence had taken place night in front of house of Mst. Bakhan in Basti Syedan Wali, situate at a distance of two kilometers from Police Station City, jhang. Two more individuals namely Riaz Hussain Shah and Sajjad Hussain Shah appellants also received two injuries each. Iqrar Hussain appellant took the lead to set the criminal law into motion by getting Crime report No. 27, dated 5.2.1996 under Sections 324/337-A(ii)/337-F(i)/337-L(2), PPC registered with Police Station City, Jhang. He adopted the following version.
On 5.2.1996 at about 8.30 a.m. Riaz Hussain Shah was on his way to jhang City to purchase vegetable. When he reached near Dera of Zawar Hussain Shah and Naris Shah, he found that Zawar Hussain while carrying a 12-bore gun and Naris Hussain armed with hatchet were present there. Zawar Hussain Shah shouted a Lalkara that they would be taught a lesson for supporting Maratib Shah and made a i.e shot on the thorax region of Riaz Hussain who ducked down and escaped unhurt. Zawar Hussain Shah gave a butt blow, which struck on right side of his head. Naris Shah inflicted an injury on right side of head of Riaz Hussain, Iqrar Hussain Shah and Sajjad Hussain Shah were attracted to the place of occurrence. On hearing gun report Gamey Shah and Kishwar Hussain also reached there. Sajjad Hussain Shah intervened to rescue Riaz Hussain who was given a hatchet blow by Naris Shah. This injury fell on the had of Sajjad Hussain Shah. Thereafter Zawar Hussain delivered two blows with butt, which landed on ankle and back of chest of Sajjad Hussain.
Naris Hussain Shah made good his escape with his hatchet whereas gun was snatched from Zawar Hussain Shah. The barrel of the gun was got twisted a bit during act of snatching.
18. Reason behind the occurrence was that case FIR No. 255/1995 under Section 457/380/411, PPC stood registered against Mazhar Hussain Shah in which Riaz Hussain Shah had helped Mazhar Shah. Due to this grievance Zawar Hussain Shah and Naris Hussain Shah launched murderous assault upon Riaz Hussain and Sajjad Hussain Shah. They both were medically examined. He left for the Police Station after obtaining medico-legal reports to include criminal proceedings against the offenders. He came across Muhammad Ashraf, SI (PW.7) and dictated his statement (Ex.DE) at Tonga Stand ]hang at 12.30 p.m. It would be most pertinent to mention here that FIR version is absolutely silent over death of Mst. Bakhan and injuries on the person of Muhammad Naris (PW.3) and Zawar Hussain (PW.2) Police after thorough and discrete investigation came to the conclusion that FIR version was false. Sultan Azam Temuri (PW.8) also investigated the case. He did not agree with the version of FIR, taken by the accused party. He also deleted the offences mentioned in the FIR. On 21.3.1996 he rejected the version of lqrar Shah made in FIR No. 27, dated 5.2.1996 and directed the -Investigating Officer to proceed with the investigation, complete the same and submit the challan. During investigation of that case Muhammad Ashraf, S.I. (PW.7) recorded statement of Zawar Hussain complainant on 6.2.1996 at 12.45 p.m. At Ayub Chowk ]hang, Sadar. On the basis of which convicts were challaned to face their trial for having committed offences under Sections 148/302/337- F(i)/337-F(ii)/337-L(2)/149, PPC. However, Ghazanfar Shah, Chan Pir and Ghulam Abbas were found not involved in the occurrence.
19. Driven into this situation Zawar Hussain Shah instituted a private complaint in the Court of learned Magistrate. The learned Ilaqa Magistrate sent the complaint to learned Sessions Judge, Jhang under Section 190(3), Cr.P.C, for 7.5.1996. On 7.5.1996 the learned Sessions Judge entrusted the complaint to a learned Additional Sessions Judge and directed the complainant to appear before the said Court on the same day i.e. 7.5.1996. On 14.5.1996 learned Additional Sessions judge entrusted the complaint to a learned Judicial Magistrate section 30 for an inquiry under Section 202, Cr.P.C. After recording preliminary evidence on 9.6.1996. The learned Judicial Magistrate submitted his inquiry report to the learned Additional Sessions Judge on 11.6.1996. The said learned Judge summoned all the respondents as accused on 16.6.1996. On 5.10.1996 challan case was also put-up before the learned Additional Sessions Judge, Jhang where complaint case was already pending. The proceedings were initiated in die complaint case.
20. We have taken this lengthy exercise so that over ail picture of the case be well depicted. The appellants after being confronted with all the incriminating material opted a version which is also required to be produced in extension. Iqrar Shah appellant while answering question. "Have you anything else to say" stated as under:- "I am innocent. On 5.2.1996 my brother Riaz Shah was going to Jhang City for purchasing. The path to Jhang City passes in front of the Dera of Zawar Shah PW. When he reached there Zawar Shah armed with a gun and Naris Shah armed with a hatchet emerged there. Zawar Shah raised a Lalkara and fired a shot towards the chest of Riaz Shah who sat down and the shot missed him.
Thereafter Zawar Shah gave butt blow on the head of Riaz Shah and Naris Shah gave a hatchet blow to him on his head. Hearing the gun report and alarm Sajjad Shah reached there. Naris Shah PW gave a hatchet blow to him and Zawar Shah gave two blows to him with the gun. Sajjad Shah due to save Riaz Shah and himself gave one or two blows Zawar Shah and Naris Shah in his right of self-defence. Mst. Bakhan intervened and during the process she also received one or two injuries.
Some other persons also reached there. I myself reached there. The persons present there and myself snatched the gun from Zawar Shah to save Riaz Shah, etc. And that was produced during investigation before the police. Riaz Shah and Sajjad Shah were taken to the hospital for medical examination. Riaz Shah was admitted in the hospital because of his serious injuries. I lodge the FIR with the police on the same day in respect of the occurrence and all the witnesses mentioned in the FIR supported the cross-version. Zawar Shah concocted some of the injuries with the help of Doctor Fazal Shah and put up the counter-version on the next day. Our case was falsely not accepted by the police."
Riaz Hussain Shah, Sajjad Hussain Shah, Mehdi Shah and Mazhar Abbas relied upon statement of Iqrar Shah. Chan Pir Shah, Ghulam Abbas and Ghazanfar Abbas alleged that PWs are related to the deceased and are inimical towards them and that they have been falsely implicated in this case.
All the appellants miserably failed to comment upon excessive number of injuries on the person of the deceased and other injured PWs.
21. Now we would like to examine injuries suffered by the deceased Mst. Bakhan, Zawar Shah (PW.2) and Naris Shah (PW.3). Injuries suffered by Mst. Bakhan deceased were as under:-
(i) A lacerated wound 6 c.m. 2 c.m. Bone exposed on the back of head in middle.
(ii) A lacerated wound 5 c.m. x 9 c.m. x scalp deep on the back and left side of head 10 c.m. Above the left ear.
(iii) A contused swelling of 5 c.m. x 3 c.m. On the left side of head 6 c.m. Above the left ear.
(iv) A contused swelling 3 c.m. 2 c.m. On left side of fore-head.
(v) A contused swelling 2 c.m. x 2 c.m. On the right side of forehead.
Injuries suffered by Muhammad Naris are as under:-
(i) A lacerated wound 3 c.m. x 0.5 scalp deep on the left side of head 6 c.m. Above the left ear.
(ii) An incised wound 7 c.m. x 2 c.m. x muscle deep on the space between the thumb and right index finger of palmer side of right had.
(iii) An abrasion of 3 c.m. x 0.3 c.m. With contused swelling of 4 c.m. x 2 c.m. On the inner side of right ring finger.
(iv) An abrasion mark 2 c.m. x 1 c.m. On the inner side of left index finger.
(v) A contused swelling 9 c.m. x 5 c.m. On the back of right upper arm lower part.
(vi) An abrasion mark of 2 c.m. x 2 c.m. On the inner side of right elbow joint.
(vii) A contused swelling of 8 c.m. x 4 c.m. On the back of right fore-arm middle part. General clinical condition of the patient was satisfactory. Injury Nos. 1 and 3 were kept under observation.
The Doctor observed following injuries on person of Zawar Hussain Shah:-
(i) A lacerated wound 0.5. c.m. x 0.5 c.m. x scalp deep with contused swelling 3 c.m x 2 c.m. On the left and top of head.
(ii) A lacerated wound 1 c.m. x 0.5 c.m. x scalp deep on the left side and top of head on the anterior side.
(iii) An abrasion mark of 3 c.m. x 2 c.m. On the left side of fore-head.
(iv) A confusion mark of 6 c.m. x 3 c.m. On the back and lower part of left upper arm-
(v) A contusion mark of 9 c.m. x 4 c.m. On the outer side of right scapular region.
(vi) A contusion mark of 7 c.m. x 4 c.m. On the medial side of right scapular region coinciding.
(vii) A contusion mark of 7 c.m. x 5 c.m. On the outer side of right shoulder.
22. The prosecution evidence was mainly assailed on the ground that there was about 27 hours delay in reporting the matter to the police by Zawar Hussain (PW-2) and this casts a suspicion upon genuineness of the prosecution story. It was fabricated at a Belated stage to implicate as many innocent persons as possible by twisting real facts. This is fatal to the prosecution and no legal sanctity can be attached to proceedings initiated on the' basis of (Ex.PD/1-2) and (Ex.PE/1-2).
Now we set at the most daunting task of reappraisal of evidence in its entirety. Mst. Bakhan Bibi aged 60 years, mother of Zawar Hussain (PW.2) and Muhammad Naris (PW.3) was seriously wounded in the occurrence and was shifted to DHQ hospital at Jhang where she fought well against the death but succumbed to her injuries on 6.2.1996 at 9/10 a.m. In the hospital. Both the injured witnesses who had also reached the hospital with her were also examined for their injuries on that very day at 11.45 a.m. They both suffered seven injuries each by the use of blunt weapon. As their mother was in a critical condition and was struggling for her life, so their only anxiety was to look after their mother and to assist the medical authorities in the best possible manner. Both the sides are known to each other. There could be not doubt with regard to identity of the accused and for that reason we hold that delay is inconsequential bearing no adverse effect on the correctness of the prosecution version. Benefit of delay in reporting the matter to the police is available only to the accused when parties do not know each other, identity of the accused is yet to be fixed and story is to be built up but in this case there is no evidence to demonstrate that this time was consumed by the injured witness or others to enter into mutual deliberations, consultations and conference with each other. We attach no importance to this type of delay in reporting the matter to the police. After the occurrence was over, Sajjad Hussain and Riaz Hussain appellants were fully conscious of the fact as to what had been done by them. Their utmost desire was to stave OF anger of legal punishment by creating a false defence plea. They thought of a plan to set the criminal law into motion by getting Crime report No. 27, dated 5.2.1996 registered against the complainant side at Police Station jhang City. Sajjad Hussain Shah and Riaz Hussain Shah allegedly suffered two injuries each. According to medico-legal report (Ex.DA) in respect of Riaz Hussain Shah Doctor found following injuries:-
(i) A lacerated wound of 4.5 c.m. x 2.5 c.m. With bone exposed on the top and right side of head.
(ii) A curved shape incised wound of 3.5 c.m. x 0.5 c.m. x scalp deep on the left said of skull 7 c.m.
Above the left ear.
Likewise according to medico-legal report (Ex.DB) in respect of Sajjad Hussain, Doctor observed following injuries on his person:-
(i) An incised wound of 3 c.m. x 0.5 c.m. x scalp deep on the back of right head.
Accomplished their ignoble design. Their cent per cent participation in the occurrence is established beyond any shadow of doubt, ln these circumstances death sentence awarded to Sajjad Hussain Shah and Riaz Hussain Shah is confirmed and Murder Reference is answered in the affirmative. However, their convictions and sentences under Sections 302/324/149, PPC are converted into 302/324/34, PPC. We find that learned Trial judge failed to impose compensation upon the appellants which is mandatory. Accordingly we order that Sajjad Hussain Shah and Riaz Hussain Shah shall pay Rs.50,000/- each to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of Section 544-A, Cr.P.C, or in default whereof to undergo simple imprisonment for six months each.
25. Case against Mazhar Shah is also proved beyond any reasonable doubt. He had a definite motive and parts played by him during the occurrence find corroboration from the medical evidence. His convictions and sentences are also maintained. He shall also pay Rs.50,000/- to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of Section 544-A, Cr.P.C, or in default whereof to undergo simple imprisonment for six months. However, has conviction is converted from Sections 302/324/149, PPC to 302/34, PPC and 324/34, PPC.
Convictions and sentences of Riaz Hussain Shah, Sajjad Hussain Shah and Mazhar Shah are set aside under Section 148, PPC. Benefit of Section 382- B, Cr.P.C, is also extended to them.
26. During course of investigation, Chan Pir Shah, Ghulam Abbas Shah and Ghazanfar Abbas Shah were given clean chit by the investigating agency. They ail had alleged that they were not present at the spot and had not participated in the occurrence which fact was verified by the Investigating Officer and they were found not involved in the occurrence. Even before the Trial Court they professed their innocence in the matter. Opinion of the police qua guilt or innocence of tile accused is no evidence in the case but some weight has to be attached to it. Accordingly by providing them the benefit of doubt, we quash their convictions and sentences and order their release forthwith from custody if not required to be detained in any other case.
27. Now we take-up case of Mehdi Shah and Iqrar Shah. Injuries Nos. 3 and 4 on the person of Mst.
Bakhan Bibi have been attributed to Mehdi Shah and Iqrar Shah which are merely in the form of swellings. Injury No. 5 is not specifically attributed to any one. Contents of post-mortem report reveal that there was profuse haemorrhage under fracture of parietal bone. Clotted and non- cotted blood was found within the cranium and brain matter which is to be termed as internal haemorrhage. learned counsel for the complainant rightly pointed out that case of appellants who were found innocent during the course of investigation and that of Iqrar Shah and Mehdi Shah is also somewhat doubtful. At this juncture we would like to furnish reasons as to why case against Iqrar Shah and Mehdi Shah is also doubtful.
28. Scalps is very vascular, so scalp wounds bleed profusely. The wounds are not usually dangerous to life. Anyhow, injuries to contents of skull often prove dangerous. Scalp wounds may bleed even after death. Skull bones are of unyielding character which prevent downward pressure of haemorrhage under skin, so often wound is located elsewhere and swelling becomes more prominent at another place. The blood may flow from delicate layers in the scalp from one place to another, which results in the form of haematoma. In our considered view swelling are not due to infliction of injuries but because of haemorrhage of the highly vascular skull. Forceful blows by means of Dongs result in lacerated wounds over head, so for this reason we find that case against Mehdi Shah and Iqrar Shah is doubtful, Iqrar Shah simply admitted his presence at the spot because he had to act as the complainant of FIR version. That FIR should have been got registered by Riaz Hussain Shah and Sajjad Hussain Shah, so we are inclined to extend benefit of doubt to Mehdi Shah and iqrar Shah and pronounce their acquittal. They shall be set at liberty forthwith if not required to be detained in any other case.